Catholic Legal Immigration Network, Inc CLINIC UPDATE ON WIDOWS AND OTHER SURVIVING FAMILY MEMBERS
UPDATE ON WIDOWS AND OTHER SURVIVING RELATIVES Debbie Smith dsmith@cliniclegal.org Charles Wheeler cwheeler@cliniclegal.org
WE WILL COVER: Widow(er) petitions 204(l) relief for other surviving family members Humanitarian reinstatement
DEATH OF THE PETITIONER Oct. 2009 legislation affects Widow(er) self-petitions Continuation of other I-130s upon death of petitioner Humanitarian reinstatement for those not covered Effective date is October 28, 2009 Memos of Dec. 2, 2009 and Dec. 16, 2010 4
WIDOW/ERS OF U.S. CITIZEN Married to a U.S. citizen (citizen at time of death) Married at time of citizen s death, no legal separation File I-360 within 2 yrs of the death Not remarried Admissible 5 5
FILING PROCEDURE Determine if eligible for adjustment of status or must consular process If eligible for adjustment, file I-360 with I-485 If must consular process, will trigger ground of inadmissibility by leaving? Special waiver policy 6
INADMISSIBILITY AND WAIVERS If widow residing in U.S. on date spouse died If widow continues to reside in U.S. through adjudication of petition, application Citizen spouse died while petition/application pending or after petition approved Can file waiver and will presume extreme hardship 7
FILING PROCEDURE Submit copy of the following: Marriage certificate Proof of good faith marriage Proof of citizenship of deceased Death certificate Termination of prior marriages Birth certificate of minor children Pending or approved I-130 converts to I-360 No affidavit of support (I-864W) 8
EXAMPLE John and Maria married November 1, 2009. He filed an I-130 six months ago, which is still pending. John died last week. Maria came to you to find out what she can do. Upon further questioning, you determine that John was a USC and that Maria entered the United States four years ago on a tourist visa. What can Maria do? 9
EXAMPLE Same facts only Maria entered the United States without inspection. If she must consular process, will she trigger the unlawful presence bar? If so, does she qualify to file a waiver and will it likely be approved?
RETROACTIVE APPLICATION 2009 law eliminates need to be married to USC for 2 years for deaths occurring on or after October 28, 2009 For surviving spouses of U.S. citizens married for fewer than 2 years prior to new law, have until October 28, 2011 Applies to spouses residing here or abroad Check waiver eligibility if consular processing 11
EXAMPLE Same facts, only John and Maria were married three years ago and John died one year after they were married. He never filed an I-130 for her. What can Maria do now? 12
EXAMPLE Same facts only Maria and John never lived in the United States. They married and always resided in Mexico. John never saw the need to petition for Maria because he never wanted to live in the United States. But Maria s son is living in the U.S. and she wants to live here. What can she do? 13
DERIVATIVES Can also immigrate unmarried children under 21 as derivatives Can use CSPA to freeze child s age Exception to the rule that immediate relatives cannot immigrate derivatives 14 14
EXAMPLE Assume that Maria is living in the United States when John died. She can file a widow petition and adjust status. She has a 17-year-old child from a prior relationship living in Mexico. Can the child immigrate? Would it matter if the child is 20 and about to turn 21? 15
FILING PROCEDURE File I-360 with either the Dallas or Phoenix Lockbox No need for I-360 if prior I-130 (automatically converts) If eligible to adjust, file I-360 with I-485 Chicago Lockbox If outside U.S., file at consulate If eligible for waiver, file with USCIS in U.S. or abroad 16 16
PETITION REVOCATION 8 CFR ' 205.1 says approval of an I-130 petition is automatically revoked where: Notice of withdrawal by petitioner Death of the beneficiary Termination of the marriage in a spousal case Marriage of F-2B beneficiary Death of the petitioner, unless widow(er) self-petition or AG determines not to revoke for humanitarian reasons 17 17
INA 204(l) Law helps principal and derivative beneficiaries when the petitioner dies Law helps derivative beneficiaries when principal beneficiary dies Law helps beneficiaries in both the family and employment-based categories USCIS memo dated 12/16/10 implemented this section of the law 18
204(l) HELPS MANY SURVIVING FAMILY MEMBERS Widows of LPRs Children of LPRs Children of citizens Adult unmarried sons, daughters of citizens and derivatives Married children of citizens and their derivatives Parents of citizens Siblings of citizens and derivatives Spouses and children of asylees, refugees Derivative of principal T and U visa holders Derivatives when principal beneficiary dies in family and employment-based cases 1 9
BENEFITS OF 204(l) Beneficiaries may continue with the case as if the petitioner or principal beneficiary had not died They can continue with adjustment of status or consular processing Does not allow for adjustment if not otherwise eligible Must still satisfy petition requirements 20
EFFECTIVE DATE Law applies to petitions/applications pending on or filed on or after Oct. 28, 2009, so not retroactive Petitioner could have died before that date If petition/application adjudicated or revoked prior to October 28, 2009 and beneficiary satisfies residency and other requirement, can file motion to reopen USCIS will reinstate petition/application 21
EXAMPLE Daviani, an LPR, filed an I-130 for her husband, Tanu, on December 1, 2010. She died a month later, while the petition was still pending. Section 204(l) would apply, if Tanu satisfies residency requirements. 22
EXAMPLE Same facts but Daviani filed the I-130 on December 1, 2008. She died a month later, while the petition was still pending. The petition was approved in June 2009, but revoked when Tanu informed USCIS of her death. Section 204(l) would not apply, since no petition was pending on October 28, 2009. But Tanu may be able to reinstate the I-130 and continue case. 23
WHAT IS THE BIG REQUIREMENT FOR 204(l)? Petitioner or principal beneficiary must have died when the petition or application was pending If died after petition was approved, cannot use 204(l), but must use preexisting procedure for humanitarian reinstatement 24
EXAMPLE Jose, a U.S. citizen, filed a petition for his brother, Mario, in 1998. It was approved one year later. Jose died last month, but the 4 th preference priority date is now current. Mario and his spouse and children are not eligible for 204(l) relief, but must apply for humanitarian reinstatement of the revoked petition. 25
EXAMPLE Same facts, except the priority date became current last month and Mario and his family immediately applied for adjustment under 245(i). Jose just died yesterday. Since the application was pending when Jose died, Mario and his family may qualify for relief under 204(l) if they satisfy residency requirements. 26
RESIDENCY REQUIREMENT Beneficiary must have been residing in U.S. on date petitioner died and continue to reside here until decision on petition/application. Not all beneficiaries need to meet residency requirement provided one does Residence not same as physical presence Residence does not have to be lawful 27
EXAMPLE Jose, a U.S. citizen, filed a petition for his brother, Mario, in 1998. It was approved one year later. The priority date became current last month and Mario and his family immediately applied for adjustment of status. Jose died yesterday. Mario and his family were all residing in the U.S. when Jose died and will continue to reside here until adjustment is adjudicated. They qualify for 204(l) benefits. 28
EXAMPLE Same facts, but Mario s wife and children have always resided in Mexico. They still qualify for relief because Mario satisfies the requirements of 204(l). After Mario adjust status, the spouse and children can consular process as accompanying or following to join derivatives. 29
EXAMPLE Felipe, a naturalized US citizen, filed an I- 130 petition for his married son, Andre, in 2001. It was approved one year later. Andre and his wife have been living in Los Angeles illegally since 1999. The priority date became current in June 2010, and Andre and his wife filed for adjustment, which is still pending. Andre died today. His wife can continue with the application since she satisfies 204(l) requirements. 30
EXAMPLE Leo was granted asylum in 2009. He filed an I-730 for his wife and child, and they entered the United States as derivatives. One year later they applied for adjustment of status. While it was pending, Leo died. The wife and child can still continue with their adjustment because they satisfy the requirements of 204(l). 31
INADMISSIBILITY AND WAIVERS Similar rule as for widows If adjustment or immigrant visa applicant satisfies residency requirement, can apply for a waiver, even though qualifying relative has died Death of petitioner will be deemed to satisfy extreme hardship requirement USCIS can still deny in its discretion 32
EXAMPLE Carlos, an LPR, filed I-130 for his spouse in December 2009. He died two months later while it was pending. His wife was residing illegally in the U.S. at the time. She qualifies for relief under 204(l) and I- 130 will be adjudicated even though petitioner has died. When the priority date is current, she must consular process and will trigger unlawful presence bar. She also qualifies to file a waiver. 33
INADMISSIBILITY AND WAIVERS Special waiver rule only applies when qualifying relative died May not apply if petitioner dies and derivative beneficiaries still need qualifying relative Same when principal beneficiary dies Also applies when petitioner dies after petition approved and beneficiary only qualifies for humanitarian reinstatement 34
SUBSTITUTE I-864 Submit substitute affidavit from the beneficiary s spouse, parent, mother-inlaw, father-in-law, sibling, child (at least 18 years), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-inlaw, grandparent, grandchild, or guardian Must be USC or LPR and domiciled here Can also secure joint sponsor who meets income requirements 35 35
HUMANITARIAN REINSTATEMENT OF I-130 8 CFR 205.1(a)(3)(i)(C) provides exception to automatic revocation if beneficiary establishes would be inappropriate to revoke based on humanitarian factors Written request, supporting documentation including substitute I-864 I-130 must be approved before petitioning spouse died 36 36
SUPPORTING DOCUMENTATION Detailed declaration from beneficiary I-797, Notice of Approval of I-130 Death certificate Substitute I-864 Proof of substitute sponsor s relationship 37 37
HUMANITARIAN FACTORS Long residence in the United States Impact on other family members and their immigration/citizenship status Advanced age or health-related problems Current economic or political conditions in home country and lack of contact or family Attachment to local community Declarations from friends, religious leaders Agency delay in adjudicating petition 38 38
WHERE TO FILE MOTION To the USCIS service center that adjudicated the I-130 petition File with district office if pending application for adjustment of status No filing fee Was taking long time to adjudicate, but now faster 39 39
REINSTATEMENT AND 204(l) Humanitarian reinstatement for those who are outside U.S. or do not qualify for 204(l) If satisfy residency requirements but petitioner died after petition approved, then USCIS likely to approve request In those cases, do not need to submit humanitarian factors Applies to cases preceding Oct. 28, 2009 Also applies when principal beneficiary dies
EXAMPLE Luis, an LPR, filed an I-130 for his wife, Marissa, in 2006. It was approved one year later. Luis died in January 2008, before the priority date became current. Marissa was residing in the U.S. when he died and is still residing here. The priority date is now current. Though she does not qualify for 204(l), she can file a request to reinstate and it will likely be granted. She also can file a waiver if she needs one. 41
Questions? Follow us: twitter.com/cliniclegal 415 Michigan Ave., NE Suite 200 Washington, DC 20017 202-635-2556 national@cliniclegal.org Become a fan: facebook.com/cliniclegal