IN 2009, President Obama signed into law amendments to the Immigration & Nationality Act (INA) reversing the longstanding rule that a “visa petition dies with the petitioner.” The new law will ameliorate the harsh, unfair consequences resulting to thousands of beneficiaries of family and employment-based visa petitions who have been waiting for years for their priority dates to become current, only to have their hopes dashed by the untimely death of the Petitioner before they could obtain their green cards. The signing of this new law could mark an end to nearly 15 years of anti-immigrant lawmaking and the beginning of an era of “common sense” fairness in new immigration legislation.
For decades, the rule was simple: The Petition dies with the Petitioner. The only way to avoid application of that law was through approval of a Request for Humanitarian Reinstatement with the office of the USCIS that originally approved the petition. Since the decision to grant such a request was solely within the discretion of the USCIS, these applications were assigned a very low priority within the USCIS offices, causing bereft Beneficiaries of petitions filed by recently deceased US Citizens and Green card holders to suffer inordinate delays and additional anxiety while their fate lay in the hands of a USCIS officer.
Under the new law, the rule is completely reversed: The Petition survives the death of the Petitioner. The only way this rule does not apply is if the USCIS, in its discretion, believes that the revalidation of such a petition would be “against the public interest.” In the vast majority of cases, the Beneficiaries of such petitions are merely innocent victims of long delays in visa availability and the tragic loss of their petitioning relative. The new law removes the additional penalty of losing any opportunity to obtain lawful permanent resident status to these already suffering victims.
The unfairness of the so-called “Widow Penalty” provided much of the impetus for this new legislation. Under prior law, the surviving spouse of a US Citizen who had petitioned her for a green card could, with limited exceptions, only obtain the green card if the marriage had lasted two years before the US Citizen Petitioner denied. This rule created anomalous and arbitrary results, giving rise to many law suits challenging the fairness of a law that would deny the green card to a widow (even the widow of a US Serviceman killed in Iraq in one famous case) solely because the marriage did not last two years before the Petitioner’s unfortunate death. The new law removed the requirement that the marriage must have lasted two years, allowing for the widowed beneficiary of a petition filed by a US citizen to obtain a green card as long as the widow did not subsequently remarry.
In addition to removing the “Widow Penalty,” the new law expands its protections to additional categories of beneficiaries, as long as they were residing in the US on the date the Petitioner passed away and continue to reside in the US, including: Unmarried sons and daughters of Citizens, Spouses and unmarried sons and daughter of green card holders, married sons and daughters of citizens, and brothers and sisters of citizens. Children of such beneficiaries may also be included derivatively if they continue to meet the definition of “child” under the law at the time the priority date becomes current.
Beyond the regular family categories, the new law also preserves eligibility for derivative beneficiaries of employment-based categories, where the principal Beneficiary has passed away during the process. This rule would allow for the spouse and children of a worker whose I-140 is pending or has been approved to continue to seek adjustment of status to permanent resident even though the worker under petition passes away. This provision will help avoid the extremely unfortunate situation where a family has been residing in the US for many years while awaiting their green cards through the “labor certification” and I-140 process, only to have their children uprooted from school and forced to depart the US following the tragic loss of their parent.
Additionally, the new law will provide ongoing availability of benefits to the surviving direct and derivative beneficiaries of refugee and asylee petitions, as well as the dependent beneficiaries of deceased “U” and “T” visa holders. The new law also makes clear that in any case where the petition is found to survive the death of the petitioner or “qualifying relative,” the regular affidavit of support requirements do not apply, allowing for substitute sponsors on the affidavit of support in such cases.
While the USCIS has dragged its feet in issuing its regulations to implement this new law, the law is effective now. In the interim, the USCIS may attempt to restrict the law’s applicability through issuing its own internal memoranda, however, individuals impacted by the new law may seek to benefit from its provisions and assert eligibility under the “plain language” of the statute right away. After all, Congress makes the laws and the USCIS’ duty is to simply carry them out.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; Tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.
