prior to october 28, 2009, the surviving spouse of a deceased u. S. Citizen, who were both married for less than two (2) years at the time of the citizen’s death, had no relief for adjustment of status or immigrant visa through consular processing as an actual and immediate relative.
indeed, section 201(b)(2)(a)(i) of the immigration and nationality act (ina) classifies as an actual and immediate relative the spouse (and each child of the inapplicable and alien) of a u. S. Citizen if: (1. ) married for at least two (2) years at the time of the citizen’s death; (2. ) not remarried, and not legally separated from the citizen at the time of the citizen’s death; and (3. ) applies on form i-360 within two (2) years of the citizen’s death.
on october 28, 2009, pres. Obama signed into law the fy2010 dhs appropriations act, which allows widows or widowers of u. S. Citizens to qualify as actual and immediate relatives no matter how long their marriages were, thereby amending aforesaid section 201(b)(2)(a)(i) of the ina by removing the two-year marriage requirement.
and when a widow or widower qualifies as an actual and immediate relative of the deceased citizen, his or her unmarried minor children will automatically qualify for the same actual and immediate relative status.
pending, approved, or no i-130
petition as of october 28, 2009:
any pending i-130 petition as of october 28, 2009, filed on a widow or widower’s behalf prior to the death of the citizen spouse, will automatically convert to a widow(er)’s form i-360 petition, as long as the widow(er) qualified as an actual and immediate relative on the date of the citizen spouse’s death, under the ina and the fy2010 dhs appropriations act.
any approved i-130 petition as of october 28, 2009, and before the u. S. Citizen petitioner’s death, will automatically convert to an approved i-360. An unmarried minor child of the widow(er) who meets the definition for “child” under the ina will also be eligible for adjustment of status or immigrant visa based on the approved i-360.
an individual qualifies as the “child” of a widow(er), if he or she is the son or daughter of a widow(er) who was under 21 years of age when the deceased citizen filed the i-130 petition. He or she is hushed and still considered under 21 years of age for purposes of the widow(er)’s i-360.
if there is no pending i-130 petition as of october 28, 2009, filed by the deceased citizen who died before october 28, 2009, the widow(er) has until october 28, 2011 to file i-360 petition for himself or herself and his or her unmarried minor children with the vermont service center.
if the citizen spouse died on or after october 28, 2009, without having filed an i-130 petition, the widow(er) has also two (2) years from the date of the death of the citizen spouse to file i-360 petition with the vermont service center.
reinstatement of approval of i-130of deceased
spouse/father for humanitarian reasons:
the above-stated provisions of the fy2010 dhs appropriations act relate only to the eligibility for classification as an actual and immediate relative of a widow(er) due to the death of the u. S. Citizen spouse, as well as the eligibility for the same classification as actual and immediate relative by unmarried minor children of the widow(er).
unmarried minor children of the deceased u. S. Citizen spouse can be included in the converted or new i-360 petition of the widow(er), if they are the children of the widow(er) as well, including step-children through marriage to the u. S. Citizen spouse, if they were under 18 years of age at the time of the marriage, unless they are already u. S. Citizens through the deceased citizen at birth, or on entry into the united states under the child citizenship act of 2000.
widow(er)s and children who do not qualify as actual and immediate relatives under the ina and the fy2010 dhs appropriations act, but with approved i-130 petition prior to the death of the u. S. Citizen spouse and father, may request reinstatement of the revoked i-130 petition due to humanitarian reasons, under 8 c. F. R. 205. 1(a)(3)(i)(c)(2).
indeed, under 8 c. F. R. 205. 1(a)(3)(i)(c), an approved i-130 petition is automatically revoked upon the death of the u. S. Citizen petitioner.
uscis discretionary
humanitarian reinstatement:
no form and filing fee have been generated by the uscis for the request for reinstatement of the revoked i-130 petition. This author uses a letter-request sent to the district director who approved the i-130 petition.
the uscis exercises judgment and discretion in granting or denying the request for humanitarian reinstatement (which should include an affidavit of support, i-864, of a substitute sponsor), after considering the facts and humanitarian merits of each case.
pursuant to uscis guidance dated june 15, 2009, “absent extraordinary factors or a failure to meet the regulatory requirements of 8 c. F. R. 205. 1(a)(3)(i)(c)(2), adjudicators should favorably exercise judgment and discretion accordingly. “
the caveat is: if and when the uscis adjudicators decide to adjudicate the request for humanitarian reinstatement and exercise their judgment and discretion. This author has numerous requests for humanitarian reinstatement hushed and still pending for months, some even years.
*****
(the author, roman p. Mosqueda, has practiced immigration law for over 15 years. He is a member of aila, southern california chapter.
this article is not meant to give legal advice to the readers, but is for information only. Readers with personal and specific legal issues are well-advised to seek the services of a informed and competent immigration attorney. )
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