In the
past, the death of the sponsor or "principal beneficiary" in an immigration
process usually spelled the end of the alien's ability to immigrate based on
that relationship. A new provision, slipped into the conference report of the
recent DHS appropriations bill signed by President Obama on October 28, 2009,
changes that. Anyone who has suffered the death of a relative through whom he
or she hoped to immigrate should immediately contact competent counsel to
determine if the opportunity might be salvaged.
Widow(er)s of U.S. citizens.
Prior law provided two major protections for the bereaved. First, the widow(er)
of a U.S. citizen could self-sponsor if the death followed at least the second
anniversary of the wedding and if the widow(er) filed the papers within two
years of the death. The new law eliminates the requirement of two years of
marriage, so the bereaved spouse can file even if the death occurred the day
after the wedding, and even if the couple had been living abroad. This is
particularly useful for couples who married abroad, such as to a U.S. soldier
stationed abroad, and who had not needed to file papers to immigrate to the U.S.
when the U.S. citizen unexpectedly died.
Importantly, anyone who in the past had not been able to file because the death
had occurred less than two years before the wedding can now step forward and
self-sponsor for permanent residence, even if the death occurred twenty years
ago and even if the person is living abroad, but that filing must be made by
October 28, 2011 (two years after the law was passed). For deaths occurring
after October 28, 2011, the filings must be made within two years of death.
Children may be able to join the filings. Widow(er)s illegally present in the
U.S. might still face problems. A widow(er) who has since remarried cannot use
this special provision but might use the provisions discussed below.
Survival of Petitions.
Prior law allowed the beneficiary of a family petition (I-130) to request highly
discretionary "humanitarian reinstatement" if the sponsor died. That
opportunity technically remains, especially if the beneficiary does not reside
in the U.S., but the new law creates a clearer path for a wider range of
beneficiaries.
Under
the new law, primarily an amendment to INA section 204(l), if the sponsor
dies, or even if the primary beneficiary of a petition dies, the bereaved family
may continue to receive the benefits of the petition as if the death had not
occurred, as long as the beneficiary resided in the U.S. at the time of death
and still resides in the U.S. The protection applies to a wider range of case
types than the "humanitarian reinstatement" did:
·
principal and
derivative beneficiaries of family based I-130 petitions when the petitioner
and/or principal beneficiary dies,
·
beneficiaries of
I-730 petitions by refugees and asylees,
·
family of T and
U nonimmigrants when the principal nonimmigrant dies,
·
derivative
asylees when the principal asylee dies, and
·
derivative
beneficiaries of employment based petitions when the worker dies.
It does
not seem to matter if a bereaved spouse has remarried, but marriage to a foreign
national lacking U.S. status might create complications. It seems possible to
seek a waiver of inadmissibility (such as for past misrepresentation or unlawful
presence), but waivers depending on hardship to the now-deceased relative might
be complicated.
As with
"humanitarian reinstatement," if an I-130 was involved the beneficiary must have
an I-864 Affidavit of Support from a spouse, parent, mother-in-law,
father-in-law, sibling, child (if at least 18 years of age), son, daughter,
son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or
grandchild or legal guardian of the beneficiary, accompanied as necessary by a
joint sponsor.
The
provision for widow(er)s of U.S. citizens clearly applies to old, even already
denied, cases as long as the widow(er) self-petitions by October 28, 2011. But
the more general provision for the survival of petitions contains no language
about its effective date. Bereaved beneficiaries may wish to claim retroactive
benefits from this law, requesting reopening of denied cases, and we shall see
what happens.
How We Can Help
Baker Donelson’s Immigration Group has helped countless families
achieve their ultimate goal of being together by helping them obtain
family-based U.S. immigration benefits. Some of the many ways we can help
include: demonstrating a qualifying relationship when primary documents are
unavailable; helping couples who intend to marry decide which immigration route
is best for them based on their location in our out of the U.S. and the location
of the wedding ceremony; advising clients on the realities and considerations
involved in international adoption and working with adoption agencies to
complete the immigration process expeditiously to entry and citizenship; aiding
newly married couples overcome USCIS accusations of marriage fraud by
establishing that their marriage was in good faith; counseling and assisting
clients on obtaining benefits such as work authorization, travel documents and
permanent residency as quickly and efficiently as possible by avoiding delays
due to paperwork and filing errors; docketing dates for removal of conditions on
permanent residence; and helping clients continue to pursue their U.S.
immigration goals after a divorce or abuse.
