PRESIDENT Obama signed into law on October 28, 2009 the Department of Homeland Security Appropriations Bill Conference Report that contained provisions granting self-petitioning rights to all widow(er)s of American citizens and their children; and 2) certain survivors’ rights to other immigrants. The law is now known as Public Law Number 111-83.
The law allows a widow(er) who was married less than 2 years at the time of the US citizen spouse’s death to self-petition within two years of the law’s passage or until October 28, 2011. After this date, a self-petition must be filed within 2 years from date of death of the US citizen spouse. Prior to the passage of this law, only widow(er)s who were married to their US citizen spouse for two years or more were allowed to self-petition.
For example
Maria, an undocumented alien, married Pedro, a US citizen. Pedro filed an immigrant petition in behalf of Maria. On the basis of said petition, Maria filed simultaneously an application for adjustment of her status to that of a lawful permanent resident. Prior to the two year anniversary of their marriage and before Maria could get her greencard, Pedro died. Generally, in this type of case, when the petitioner dies, the petition dies also and the corresponding adjustment application gets denied. Public Law Number 111-83, however, changed this rule. Maria may now file a self-petition together with application for adjustment within two years of the law’s passage or until October 28, 2011. Of course, she must still prove that her marriage to Pedro was bonafide.
The new law likewise allows petitions that were filed prior to the death of the petitioner or the principal immigrant to be adjudicated despite the death in cases where the beneficiary or derivative beneficiary resided in the United States at the time of the death and continues to reside in the United States.
The law covers the following surviving family members: immediate relatives (spouse, parent, minor child of a US citizen); family preference relatives (unmarried son or daughter of a citizen, married son or daughter of a citizen, spouse or child of a permanent resident, brother or sister of a citizen); employment-based dependents (derivative beneficiaries); refugee/asylee relative petition beneficiaries; nonimmigrants in "T" (victims of trafficking) or "U" (victims of crime) status; and asylees.
For example
The father of Jose, an undocumented alien, filed an immigrant petition in his behalf on July 12, 1991 and the same was approved on August 17, 1991. While Jose and his wife were waiting for visas to become available, however, his father passed away on July 03, 2008. Under the old law, the only remedy for this situation is the filing of an application for humanitarian reinstatement. Pursuant to Public Law Number 111-83, however, Jose and his wife remain eligible to adjust their status based on the same petition filed by his now-deceased father. They have satisfied the requirements for application of the new rule on surviving relative consideration: at the time of petitioner’s death, he and his wife were residing in the United States and they continue to reside in the United States since their respective dates of admission.
Thus, by virtue of Public Law Number 111-83, Jose and his wife a may apply to adjust their status to lawful permanent resident based on the petition filed on July 12, 1991 by his now-deceased father. With regard to their undocumented status, since the petition was filed on July 12, 1991, they may avail of the benefit of Section 245(i) of the Immigration and Nationality Act and adjust their status by paying the penalty of $1,000.00 and submitting Supplement A to Form I-485.
If you want to know more about this topic, please call us at (626) 331-8188 or (818) 956-8844 and schedule an appointment for your free initial office consultation. You may also visit us at www.palacioslawfirm.com.
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Attorney Eugene M. Palacios is the founder and principal of the Law Offices of Eugene M. Palacios. He has great depth of experience and a successful track record in handling employment and family-based petitions as well as PERM and naturalization applications. He is licensed as an attorney in California and is admitted to practice before US Immigration Courts, the US Central District Court, and California State Courts. He is also an active member of the American Immigration Lawyers’ Association. His offices are located at 100 North Brand Boulevard, Suite 600 , Glendale , California 91203 and at 800 South Barranca Avenue, Suite 250 , Covina , California 91723 .
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The above article does not, and is not intended to, constitute legal advice for a specific immigration problem and does not create an attorney-client relationship between our office and the reader. It is for informational purposes only and reflects our law firm’s opinions and views on general issues.
( Published December 12, 2009 in Asian Journal Los Angeles p. C2 )
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