How to prevent the death of a relative who was the petitioner for our legal residence in the United States from becoming a double tragedy? What options are there?
The death of a close family member is itself a tragedy, but when this person was a U.S. citizen and was the person who would give their family members the legal path to legal residency in the United States, this loss took on dimensions. still much older. We mourn our loved one and we also feel that with that person our illusions of obtaining a legal residence vanish. Traditionally, this situation used to be a double-hit tragedy, but with the changes introduced in the legislation, this situation can now have a solution.
There are currently three legal remedies to save this situation. This is the remedy provided by the new Article 204 (l) of the Immigration and Nationality Law, the so-called "Humanitarian Reinstatement" request, and the special provisions for widows or widowers of United States citizens, which will be explained below.< /p>
The new Article 204 (l):
In the past, a petition from a foreign relative could not be approved if the petitioner died while the petition was pending. However, in 2009 the American Congress addressed this scenario with a new legal provision: Article 204 (l) of the Immigration and Nationality Law. This provision gave foreigners the ability to obtain, in certain circumstances, immigration status through a deceased relative, whether the relative was a US citizen or legal permanent resident.
The authorities may approve an application for adjustment of immigration status based on a petition of a relative who has died when said adjustment has been approved after October 28, 2009, provided that the following three conditions are met: (i) that the beneficiary had resided in the United States at the time of the death of the petitioning relative; (ii) that the beneficiary continues to reside in the United States on the date of the decision on his application (and at the time of adjusting his immigration status); and (iii) that the applicant is one of the persons empowered for this purpose by law. Eligible persons are: the beneficiaries (principal or derivative) of an immigrant visa petition whether pending or approved based on a family relationship or employment; beneficiaries derived from a pending or approved petition for Refugee, Asylee, VAWA (Violence Against Women), T visa (for victims of human trafficking) or U visa (for victims of violent crimes).
This remedy may be applied to any application for adjustment of status adjudicated on or after October 28, 2009, even if the qualifying relative died before October 28, 2009. If a petition was denied after October 28, October 2009, without considering the effect of the aforementioned article 204 (l) of the law and said article could have allowed its approval, the Citizenship and Immigration Services (USCIS) must reopen the case to make a new decision in light of this new law.
With respect to the Residency Requirement, the law defines an applicant's residence for these cases as her "principal place of residence, actual in fact, without regard to intent." If the applicant's residence was in the United States at the required times, then the applicant meets the residency requirement. Therefore, an applicant who was only temporarily abroad when the petitioning relative of hers died does not need to prove that he or she still resides in the United States. Furthermore, the legal definition of residency does not require the applicant to prove that her presence in the United States is lawful. However, the execution of a deportation order extinguishes a non-citizen's residency in the United States.
With respect to derivative beneficiaries, as long as any surviving beneficiary of a petition meets the residency requirement, the petition may be approved despite the death of the petitioning relative. All beneficiaries may immigrate to the same extent that they would have been allowed if the qualifying relative had not died. Not all beneficiaries need to meet the residency requirements to remain eligible for the adjustment.
The Humanitarian Reset:
If your case does not qualify under Article 204 (l) of the Immigration and Nationality Law, do not despair because there is still a Humanitarian Reinstatement remedy that could apply to your case.
Although section 205.1 (a) of Section 8 of the Code of Federal Regulations provides for the automatic revocation of an approved family petition in the event of the petitioner's death, subsection (3) (i)(C) provides exceptions to the rule and provides USCIS with the power to reinstate an already approved family petition, when it believes that revocation would be inappropriate based on humanitarian factors.
This remedy is more restrictive than relief under Section 204(l) because it can only be requested by the principal beneficiary of an I-130 family petition after the petition has been approved. It does not apply to pending cases or cases under I-140 (petition for foreign workers), or derivative beneficiaries. But if your case involves an already approved family petition, in the event that you do not qualify to request the Article 204(l) appeal because, for example, you did not reside in the United States at the time of the death of your petitioning relative, you you could still qualify for the Humane Reinstatement appeal.
On the other hand, the good news is that while derivative beneficiaries cannot directly apply for humanitarian reinstatement of the petition, should USCIS approve the primary beneficiary's application, derivative beneficiaries would also benefit.
One thing to keep in mind in both appeals is that the death of your petitioner does not change how the Form I-864 (Sponsor Support) requirement applies to you. If you were required to have Form I-864 at the time of the original petition and the petitioner has died, to revive the process you must have a new Form I-864 from a substitute sponsor. The surrogate sponsor must be a US citizen or legal permanent resident, at least 18 years of age, and a member of his or her family. The good news is that for this the legislation considers the family in a broad sense and goes beyond the traditional concept of the nuclear family. Therefore, it accepts sponsors who can be either the spouse, father, mother-in-law, father-in-law, brother, son, son, daughter, son-in-law, daughter-in-law, sister-in-law, sister-in-law, brother-in-law, grandfather, grandson, or even the legal guardian of the beneficiary.
Remember, humanitarian reinstatement is a discretionary benefit. Exercising discretion means that USCIS compares the positive factors with the negative factors to make a decision. In addition to meeting the basic requirements for humanitarian reinstatement, your application must justify a favorable exercise of discretion by the authorities, which means that you must convince the authorities that the "pros" (favorable aspects) of granting your application must outweigh the "cons" (unfavorable aspects).
The case of widows of US citizens:
Widows or widowers who were married to US citizens at the time of the citizen's death may apply for a Green Card, which is legal permanent residence in the United States. Until October 28, 2009, you had to have been married to the deceased citizen for at least two years at the time of the deceased citizen's death in order to immigrate as the widow(er) of a US citizen. Congress eliminated this requirement, effective October 28, 2009. Consequently, currently to immigrate as the widow(er) of a citizen, you only need to show that you were legally married to the citizen and that you entered into the marriage in good faith and not just to get an immigration benefit.
If you were married to a US citizen who filed Form I-130 petitioning you before your death, you do not need to file anything whether your petition is approved or merely pending. The Form I-130 will automatically convert to a Form I-360 Widow's Petition, and if you have children (unmarried and under 21), they can be included on the Form I-360, regardless of whether your deceased spouse I had or requested them. To qualify, you must not have been divorced or legally separated from the US citizen at the time of the US citizen's death. Your eligibility to immigrate as a widow(er) ends if you have remarried.
On the other hand, if you were married to a US citizen but did not have an I-130 petition filed in her name, you can self-petition as "immediate relative" on Form I-360. To qualify, you must not have been divorced or legally separated from the US citizen at the time of the US citizen's death. Your eligibility to immigrate as a widow(er) ends if you have remarried. You must apply within 2 years of the citizen's death.
Finally, if you are the surviving spouse of a member of the United States armed forces who died in combat, there are specific immigration benefits for these cases under Section 1703 of Law 108-136.