(Part 2)
In a previous article, I discussed some FAQs about the Survivor Law (Section 204(l). Here are more FAQs:
3. Q: What are the requirements in order to be eligible under the new Survivor Law?
A: The person seeking benefits must have been residing in the US at the time of the death of the “qualifying relative,” (i.e. been in the US when the petitioner or principal beneficiary died), and must continue to reside in the U.S on the date of the decision. Therefore, if that person was living outside the US at the time the qualifying relative died, (i.e. in the Philippines) this new law may not apply to him or her.
4. Q: What if I was living in the US, but was on vacation abroad when the qualifying relative died. Could I still be considered to have “resided in” the US at the time the qualifying relative died?
A: Yes. According to USCIS, a person’s “residence” is his or her “principal, actual dwelling place in fact, without regard to intent.” If the alien’s “residence” was in the US when the qualifying relative died, then the law could still apply to them.
5. Q: What if the beneficiary was not residing in the US when the “qualifying relative” died?
A: The Survivor Law benefits only those beneficiaries who were residing in the US at the time the qualifying relative died. If they were living outside the US, they would have to apply for the traditional humanitarian reinstatement.
6. Q: Are all family members required to be in the US when the qualifying relative died in order to be covered by the Survivor Law?
A: No. It is not necessary for all beneficiaries to be in the US in order to benefit from the Survivor Law. In other words, suppose an entire family is under petition (husband, wife, and children) but only the wife was in the US at the time the petitioner died, and the remaining family members are still in the Philippines, it would appear that the entire family would be eligible and covered by the Survivor Law, even though only one family member was residing in the US at the time of death.
7. Q: What if I was out of status (TNT) when my petitioner died. Would I still be able to benefit from the Survivor Law?
A: The law does not require that the person demonstrate that he or she is residing in the US “lawfully.” So even TNT’s could benefit from this law. However, if a person is out of status, he or she may still need to have the benefit (or protection) of Section 245(i), which was a law that expired on April 30, 2001. That law allowed persons to adjust status (be interviewed in America for a green card) even though they were out of status, worked without authorization, overstayed, crewman, jump ship, snuck across the border, etc.) provided that they were petitioned before April 30, 2001 and were in the US before December 21, 2000. The new Survivor Law does not exempt people from being covered by Section 245(i). So if you were in the US when your petitioner died, but were not petitioned before April 30, 2001, you should see an attorney regarding your chances.
If you think that you (or someone you know) may be covered by, or benefit from, this Survivor Law, I strongly suggest, that you seek the advice of a reputable attorney who can evaluate your situation, and determine your eligibility. I know in my office, we’ve already had several people who were in the US at the time that their petitioners died and we were able to get them greens card under the law. In fact, we already featured such people on my television show, Citizen Pinoy. In a future article, I will discuss more FAQ’s about the Survivor Law.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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