NEW HOPE FOR PEOPLE WHOSE RELATIVE HAS DIED
By Michael J. Gurfinkel, Esq.
On October 29, 2009, President Obama signed into law the Department of Homeland Security Appropriations Act, which contains provisions that may benefit aliens in the U.S. who are under petition, but their “qualifying relative” has died. This new law allows people who are under petition (and their spouses and children where applicable) to continue to be eligible for adjustment of status, where the petitioner has died, or even in some cases where the principal beneficiary has died.
In the past, if a person was under petition and the petitioner died, the petition was also considered “dead,” unless the person applied for and was granted “humanitarian revalidation.” However, it was extremely difficult for people to qualify for humanitarian revalidation. In addition, under the previous law, if the principal beneficiary died, then their surviving family members would not even have the opportunity to apply for humanitarian revalidation.
This new law provides a much easier alternative to obtain a green card. The basic requirements are:
- The alien must have been residing in the U.S. at the time of the death of the “qualifying relative,” (petitioner or principal beneficiary) and the alien must continue to reside in the U.S. Therefore, if the person is outside the U.S., this new law does not apply to them.
- The USCIS should adjudicate (or process) the person’s petition and/or adjustment application unless approval of their adjustment of status “would not be in the public interest.” (However, since almost all Filipinos are hardworking, honest, and law abiding, I cannot imagine where granting them a green card would somehow not be in the public interest).
- The aliens who benefit from this new law include:
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Persons with pending or approved petitions as “immediate relatives” (spouse, parent, or child under 21 years of age of a U.S. citizen). Note that this law includes not only approved petitions, but also covers situations where the petition is still “pending.” Under the old law, one of the requirements was that the petition had to already have been “approved.” |
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B. |
Persons with pending or approved petitions (including their spouse and/or child where applicable), in the following family-based categories:
- F-1 (single adult child of U.S. citizen);
- F-2A (spouse and minor unmarried child of a green card holder);
- F-2B (single adult child of green card holder);
- F-3 (married child of U.S. citizen); and
- F-4 (brothers and sisters of U.S. citizens).
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| C. |
Derivative beneficiaries (spouse and/or child) of a pending or approved employment based petition. Therefore, if your spouse was under petition by an employer, but your spouse died, you and your children may still be eligible to pursue your own green cards, even though the “worker” has died. |
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D. |
Pending or approved petitions for asylees, refugees, crime victims, and victims of human trafficking. |
Please also note that if you are not an “immediate relative” (spouse, parent, or minor child of U.S. citizen), then you also have to make sure that the priority date is current on the underlying petition in order for you to be eligible to file for adjustment of status. (For example, if you were petitioned in 2007 by a brother or sister, but the brother or sister recently died, you would not be eligible for adjustment of status at the present time, since they are only processing brothers and sisters of U.S. citizens who were petitioned in 1987. So, you would have to wait until your priority date is current before you could file adjustment of status).
In addition, if you are out of status (TNT), you may also need the benefit of Section 245(i) in order to be eligible for adjustment of status. (Section 245(i) was a law that expired on April 30, 2001, and basically enabled people to adjust status in the U.S. even if they were out of status, worked without authorization, entered without inspection, etc., provided that they were petitioned before April 30, 2001 and were in the U.S. on December 21, 2000. No physical presence is required if the qualifying petition was filed before January 14, 1998).
In addition, as noted above, this law only seems to apply to aliens who are in the U.S. Therefore, if you are in the Philippines, and your relative died, you cannot, at the present time, avail of this new law.
If you think that you are covered by this new law, I would strongly suggest that you seek the advice of a reputable attorney, who can evaluate your situation, and determine your eligibility, and perhaps assist you in filing for adjustment of status.
WEBSITE: www.gurfinkel.com
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PHILIPPINES: 894-0258 or 894-0239;
LOS ANGELES; SAN FRANCISCO; NEW YORK:
TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465)
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