September 7, 2011
The enactment of the Fiscal Year 2010 Department of Homeland Security Bill (P.L 111-83) on October 28, 2009, radically changed the visa eligibility of individuals whose Petitioner or Primary Beneficiary has died. The law addresses the problems encountered by so many individuals who are harmed because of the lengthy adjudication process and visa backlogs. The law mandates that the Department of Homeland Security (DHS) complete the adjudication of petitions and applications for permanent residence despite the death of the Petitioner or Primary Beneficiary under certain circumstances.
For widows of US Citizens, the law specifies that a widow continues to be eligible to obtain permanent residency despite the death of the US citizen spouse. This applies even if the spouse died within two years of the marriage date. The law further states that a widow will not be granted conditional resident status, but will instead automatically obtain an unrestricted permanent resident status. Widows must file the necessary petitions within two years of the death and not be remarried. For those whose spouse died before October 28, 2009, the law mandates that the petition be filed no later than October 28, 2011.
For all other visa categories, the Surviving Relative law, which is codified as INA §204(l), applies if the individual seeking permanent residency fulfills all of the following requirements: 1) Resided in the US when the qualifying relative died; 2) Continues to reside in the US on the date of the decision on the pending petition or application; and 3) Is at least one of the following: A) The Beneficiary of a pending or approved immediate relative visa petition; B) The Beneficiary of a pending or approved family-based visa petition, including both the Principal Beneficiary and any Derivative Beneficiaries; C) Any Derivative Beneficiary of a pending or approved employment-based visa petition; D) The Beneficiary of a pending or approved Form I-730 Asylum Application; E) An individual admitted as a Derivative T or U nonimmigrant; or F) A Derivative Asylee. In addition, should an Affidavit of Support be required, the individual must have a qualifying relative who can submit an Affidavit of Support on their behalf.
Should these requirements be met, the DHS must finalize processing of the family or employment-based petition and/or Adjustment of Status Application even after the death of the Petitioner.
With respect to the residency requirement, the policy memorandum clearly states that the requirement can be fulfilled so long as any one beneficiary, either the Primary Beneficiary or any of the Derivative Beneficiaries, fulfills the residency requirement. If so, then all Beneficiaries are eligible to obtain permanent residency. Further, even though the applicant for permanent residency was not physically present in the US at the time of death, an applicant may still assert fulfillment of the residency requirement if it can be shown that the US was the applicant’s “principal, actual dwelling place in fact, without regard to intent.”
For an individual who is required to submit a waiver of inadmissibility, such as due to an assumed name, unlawful presence, or criminal conviction, INA §204(l) provides a tremendously significant benefit. The waivers generally require the individual to demonstrate that a qualifying relative, which are generally a lawful permanent resident or US citizen spouse, parent, or sometimes child, suffer extreme hardship should the individual not be granted permanent residency. Under INA §204(l), the DHS will continue to consider the deceased relative as a qualifying relative and will generally deem the death of the relative as the “functional equivalent” of proving extreme hardship. As such, waivers of inadmissibility will generally be granted when an individual qualifies for benefits under INA §204(l).
The procedures that an individual must take will depend on the status of the I-130 Petition and whether the Petitioner is already deceased as of October 28, 2009. There will be situations where the individual applying for permanent residency will be required to formally request humanitarian reinstatement of the petition. Additionally, individuals who may have previously been denied adjustment of status due solely to the death of the Petitioner may seek reopening of the adjustment of status application. This is especially beneficial to those whose children are now aged-out as the reopening of the adjustment application may entitle the children to still be included as a derivative beneficiary.
For individuals who do not qualify for benefits under INA §204(l), a traditional request for humanitarian reinstatement is still available. The factors that the DHS will consider in determining whether to grant humanitarian reinstatement are as follows: 1) The impact of revocation on the family unit in the US; 2) The Beneficiary’s advanced age or poor health; 3) The length of time the Beneficiary has resided in the US; 4) The Beneficiary’s ties to the home foreign country; and 5) Any delays in processing the case.
The DHS has issued a policy memorandum implementing the Widow law and Surviving Relative law, and are therefore readily capable of processing visa petitions and applications to those who have already suffered so much due to the death of a loved one. Thankfully, the immigration laws now acknowledge the injustice caused by the lengthy processing delays and excessive waiting periods, and aim to rectify the tragedy faced by surviving relatives.