Under our immigration laws, when the petitioner dies, an approved I-130 is automatically
cancelled. In the 90’s the United States Citizenship and Immigration Services (USCIS) issued a regulation ameliorating the harsh consequence of death of the petitioner by allowing the I-130 petition to be reinstated for humanitarian reasons. In order to seek humanitarian reinstatement or revalidation of a visa petition, the beneficiary of the petition must submit a written request to USCIS office where the original visa petition was filed and/or adjudicated. The petition must have been approved and there must be a qualifying relative who will execute the affidavit of support to be eligible for humanitarian reinstatement. Whether or not to grant reinstatement is a matter of discretion to USCIS. As such, there is no appeal from the denial of the request to reinstate the I-130 petition based on humanitarian grounds.
The approval or denial of a petition for humanitarian reinstatement should be based on “the facts of each individual case, particularly those cases in which failure to reinstate would lead to a harsh result contrary to the goal of family reunification.” In evaluating requests for reinstatement of a petition for humanitarian reinstatement, the following factors are taken into consideration: disruption of an established family unit; hardship to U.S. citizens or lawful permanent residents; if beneficiary is elderly or in poor health; if beneficiary has had lengthy residence in the United States; if beneficiary has no home to go to; undue delay by DHS or consular officer in processing petition and visa; and if beneficiary has strong family ties in the United States. From these enumerated factors, it is evident not all beneficiaries will qualify for humanitarian reinstatement.
The good news is there is an easier alternative to humanitarian reinstatement. On October 29, 2009, President Obama signed a new law which allows beneficiaries to continue to be eligible for adjustment of status even when their qualifying relative has died. Under the new law, the petition does not have to be approved. It is sufficient that a petition has been filed by the petitioner or on behalf of the petitioner before his or her death. The following are the eligibility requirements:
1) The beneficiary must be residing in the United States at the time of death of the petitioner and at the time of application for adjustment of status under this new law; and
2) USCIS must adjudicate the application for adjustment of status unless the approval of the adjustment of status would not be in the public interest.
The new law applies to:
1) Aliens with pending or approved I-130 petitions as immediate relatives such spouse, parent or child under 21 of a U.S. citizen;
2) Aliens with pending or approved I-130 petitions including their spouses and children under 21 under the following categories: F-1 (single adult son or daughter of U.S. citizen), F-2A (spouse and unmarried child below 21 of a green card holder), F-2B (single adult son or daughter of green card holder), F-3 (married child of a U.S citizen), and F-4 categories (brothers and sisters of U.S. citizen;
3) Derivative beneficiaries, which are the spouse and children under 21, of an alien with a pending or approved I-140 petition. An I-140 petition is one filed by an employer as compared to I-130 which is filed by a family member. This means that the derivative beneficiaries can pursue the application for adjustment of status even if the dead primary beneficiary of the petition is no longer working with the petitioner/employer.
4) Pending or approved petitions for asylees, refugees, crime victims, and victims of human trafficking.
For beneficiaries who do not fall under the immediate relative category, they have to wait for their priority dates to be current before they can apply for adjustment of status. Oftentimes, by the time their priority dates become current, they have been out of status in the United States. For these cases, the alien must have the benefit of 245(i) to be eligible to apply for adjustment of status under the October 2009 law of President Obama. In order to qualify for the 245(i) benefit, the I-130 or I-140 petition must have been filed before April 30, 2001. If the petition was filed between January 14, 1998 and April 30, 2001, the alien must establish that he or she was physically present in the United States on December 21, 2000. A beneficiary of a petition filed before January 14, 1998 does not have to establish physical presence in the United States on December 21, 2000.
Wednesday, February 17, 2010
Thursday, February 11, 2010
THE BUMPY ROAD TO PERMANENT RESIDENCY FOR ALIEN SPOUSES
For Valentine’s day, I want to share with you a story of a young Filipina’s fight for her permanent residency after her American husband abandoned her. Despite seemingly insurmountable difficulties, she won her immigration case.
Sometime in September 2008, a friend told me a sad story about a Filipino woman who came in the United States as fiancée of a U.S. citizen but was abandoned by her U.S citizen husband four months into the marriage. Let’s call her “Teresa.” My friend said Teresa has no money, no job and was living with a distant relative. I told my friend to give her my phone number. Teresa called me from New Jersey. She was crying while narrating her story. Teresa was broken hearted and feeling helpless. The American guy left her when his old girlfriend accepted him back. He did not even wait for Teresa to have an employment authorization or conditional green card, documents she need to survive in this country. I accepted the case with no hesitation.
Teresa’s love story was a whirlwind romance. She met the American guy online and they fell in love in a short period of time. The guy went to the Philippines to meet her and her family in person. Everything went well. They liked each other and the American guy decided to file the fiancée visa petition. To make the story short, the fiancée petition was approved and they got married in New Jersey. They did not hire an attorney when they filed for Teresa’s adjustment of status to become a conditional legal permanent resident. For this reason, they committed a lot of mistakes. They did not fill out the Affidavit of Support correctly. Teresa received a Request for Evidence (RFE) from the U.S. Citizenship and Immigration Services asking her to submit a revised Affidavit of Support. The problem was when Teresa received the RFE, her U.S. citizen husband was already living with her new girlfriend and he did not want to help Teresa with her immigration papers. Under our immigration laws, the petitioner spouse should execute the Affidavit of Support.
My first concern was the RFE. If we don’t respond to the RFE, Teresa’s application for a conditional green card will be denied. If this happens, she needs to go back to the Philippines. We needed his ex-husband to sign the Affidavit of Support. He did not want to do this, he wanted Teresa to be deported. A few weeks later, Teresa received a copy of the Petition for Annulment of marriage. I advised Teresa to use the annulment proceedings as leverage and to negotiate with her ex-husband. She will not file any opposition to the annulment proceedings provided he signs the Affidavit of Support. Teresa was scared to speak with her ex-husband and was willing to go home to the Philippines. I was able to convince her to talk to him and coached her everything to say. It worked and her ex-husband signed the Affidavit of Support that I prepared. We submitted the response to RFE and Teresa got her employment authorization card and conditional green card. She was very happy because she could work and does not have to be scared of immigration officers. She feared that one day an immigration officer will show up at her doorstep and handcuff her for deportation.
Since Teresa’s lawful permanent resident status was only good for two years, she needed to file a petition to lift the condition within 90 days before her conditional green card expires. We did not wait for this period. Since the annulment became final before her first year wedding anniversary, we filed the waiver for joint filing of petition to lift the condition a few weeks after we received the decree of annulment. For cases like this, the hard part is proving the parties entered the marriage in good faith. It was a good thing that Teresa is a very organized person. She kept all their love letters, emails, greeting cards, pictures, joint bank account statements, health insurance card, and letters from friends and relatives. A piece of advice to those who are on conditional legal permanent resident status: keep those love letters, joint bank account statements, pictures, lease agreement, health insurance card, car insurance, and other documents showing commingling of funds and property. Teresa’s mother-in-law was a big help. They remain friends up to now. Her mother-in-law paid for my fees and wrote a letter to USCIS stating that she believes her son and Teresa married for love, but her son rekindled his love with an old girlfriend and left Teresa. Another piece of advice: be good to your in-laws and step-children. Letters from them about the marriage are very credible.
Three days ago, I received a notice from USCIS that Teresa’s permanent green card will be issued in a few weeks. I was very happy for Teresa. She will have to wait for five years to become a U.S. citizen. She plans to petition her mother and brother. Teresa may also file her own fiancé visa petition. Hopefully, they will have a happy ending. I wish you all a happy Valentine’s day.
Sometime in September 2008, a friend told me a sad story about a Filipino woman who came in the United States as fiancée of a U.S. citizen but was abandoned by her U.S citizen husband four months into the marriage. Let’s call her “Teresa.” My friend said Teresa has no money, no job and was living with a distant relative. I told my friend to give her my phone number. Teresa called me from New Jersey. She was crying while narrating her story. Teresa was broken hearted and feeling helpless. The American guy left her when his old girlfriend accepted him back. He did not even wait for Teresa to have an employment authorization or conditional green card, documents she need to survive in this country. I accepted the case with no hesitation.
Teresa’s love story was a whirlwind romance. She met the American guy online and they fell in love in a short period of time. The guy went to the Philippines to meet her and her family in person. Everything went well. They liked each other and the American guy decided to file the fiancée visa petition. To make the story short, the fiancée petition was approved and they got married in New Jersey. They did not hire an attorney when they filed for Teresa’s adjustment of status to become a conditional legal permanent resident. For this reason, they committed a lot of mistakes. They did not fill out the Affidavit of Support correctly. Teresa received a Request for Evidence (RFE) from the U.S. Citizenship and Immigration Services asking her to submit a revised Affidavit of Support. The problem was when Teresa received the RFE, her U.S. citizen husband was already living with her new girlfriend and he did not want to help Teresa with her immigration papers. Under our immigration laws, the petitioner spouse should execute the Affidavit of Support.
My first concern was the RFE. If we don’t respond to the RFE, Teresa’s application for a conditional green card will be denied. If this happens, she needs to go back to the Philippines. We needed his ex-husband to sign the Affidavit of Support. He did not want to do this, he wanted Teresa to be deported. A few weeks later, Teresa received a copy of the Petition for Annulment of marriage. I advised Teresa to use the annulment proceedings as leverage and to negotiate with her ex-husband. She will not file any opposition to the annulment proceedings provided he signs the Affidavit of Support. Teresa was scared to speak with her ex-husband and was willing to go home to the Philippines. I was able to convince her to talk to him and coached her everything to say. It worked and her ex-husband signed the Affidavit of Support that I prepared. We submitted the response to RFE and Teresa got her employment authorization card and conditional green card. She was very happy because she could work and does not have to be scared of immigration officers. She feared that one day an immigration officer will show up at her doorstep and handcuff her for deportation.
Since Teresa’s lawful permanent resident status was only good for two years, she needed to file a petition to lift the condition within 90 days before her conditional green card expires. We did not wait for this period. Since the annulment became final before her first year wedding anniversary, we filed the waiver for joint filing of petition to lift the condition a few weeks after we received the decree of annulment. For cases like this, the hard part is proving the parties entered the marriage in good faith. It was a good thing that Teresa is a very organized person. She kept all their love letters, emails, greeting cards, pictures, joint bank account statements, health insurance card, and letters from friends and relatives. A piece of advice to those who are on conditional legal permanent resident status: keep those love letters, joint bank account statements, pictures, lease agreement, health insurance card, car insurance, and other documents showing commingling of funds and property. Teresa’s mother-in-law was a big help. They remain friends up to now. Her mother-in-law paid for my fees and wrote a letter to USCIS stating that she believes her son and Teresa married for love, but her son rekindled his love with an old girlfriend and left Teresa. Another piece of advice: be good to your in-laws and step-children. Letters from them about the marriage are very credible.
Three days ago, I received a notice from USCIS that Teresa’s permanent green card will be issued in a few weeks. I was very happy for Teresa. She will have to wait for five years to become a U.S. citizen. She plans to petition her mother and brother. Teresa may also file her own fiancé visa petition. Hopefully, they will have a happy ending. I wish you all a happy Valentine’s day.
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