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October 28 Deadline for Filing Widow’s Self-Petition

Prior to October 28, 2009, the visa petition filed by a U.S. citizen for his/her spouse was automatically denied if the citizen spouse died prior to two years of marriage.

Under the law then in effect, only those who were married at least 2 years before the petitioner’s death could obtain their green card. The unfortunate effect of the law was called the “widow penalty” because the surviving spouse was penalized by the citizen spouse’s untimely death.

On October 28, 2009, the President signed a law that ended this widow penalty. Section 568(c) thereof removed the two-year marriage requirement and allowed widows and widowers to self-petition for themselves and their children for permanent residence.

It also set a two-year deadline for widow(er)s whose spouses died before the law was passed. The last day for these spouses to file a self-petition is October 28, 2011. This means, for example, that a surviving spouse who married in 2000 and became widowed in 2001 must file the self-petition on or before that date.

If the citizen spouse died on or after the passage of the law, the widow(er) must file the self-petition within two years of the spouse’s death.

The self-petition is made on Form I-360 which may be filed concurrently with an application for adjustment of status (Form I-485) if the spouse is in the United States. If outside the United States, the spouse can file the Form I-360 with the U.S. embassy or consulate, and then apply for an immigrant visa after approval of the Form I-360. There is no need to submit an affidavit of support from a substitute sponsor.

If an I-130 was filed by the U.S. citizen spouse but it was denied before the law was passed, the widow(er) must file an I-360 petition on or before October 28, 2009.

If an I-130 petition was filed but was “pending” under the law at the time it was passed, the petition is automatically converted to an I-360 petition. On the other hand, an approved I-130 petition that was revoked due to the petitioner’s death would be treated as an approved Form I-360. In both cases, there is no need for a request for conversion but the widow(er) must inform the USCIS of the petitioner’s death.

For the widow(er) to be eligible for conversion benefits, the marriage must have been bona fide, and they must not have been legally separated at the time of death. The widow(er) must not have remarried.

If the widow(er) remarried, it could be argued that he/she may still be eligible to adjust status if an immediate relative petition was filed by the U.S. citizen spouse before his death. In this case, the widow(er) may adjust status as a surviving relative under a different provision of the law and the two-year deadline does not apply. A requirement of that law is that the widow(er) must have resided in the U.S. at the time of the death of the petitioner and must continue to reside in the U.S.

The widow(er) may include unmarried children under 21 years old as derivatives in the self-petition. An unmarried child over 21 years of age may still be eligible if he/she was under 21 when the I-130 petition was filed by the U.S. citizen for the alien spouse, regardless of whether a separate I-130 was filed for the child.

The USCIS will reopen I-485 applications of widow(er)s already in the United States which remained “pending” at the time of the law’s enactment. If the widow(er) left the United States voluntarily without advance parole, the adjustment application would already be considered abandoned, although the widow(er) may apply for an immigrant visa abroad.

The October 28, 2011 deadline should not be missed or else the widow(er) may lose the ability to immigrate. It must be remembered that it is not a deadline to become a permanent resident or to arrive in the United States and that it only sets the last day for starting the process by filing the I-360 petition.

Preparing for a Marriage-Based Green Card Interview

Marriage to a U.S. citizen makes one an immediate relative for immigration purposes. Numerical visa limits will not apply and the alien spouse can adjust status immediately. On the other hand, marriage to a lawful permanent resident allows the alien to be a beneficiary of a second family preference petition, which has the shortest waiting times among all family-based visa categories.

The immigration benefit may be one of the reasons why some people marry. However, it may not be the only or the primary reason for the marriage.

The parties must have intended, at the time of the marriage, to establish a life together as husband and wife. If the spouses marry for the purpose of circumventing immigration laws, the USCIS will find the marriage fraudulent and deny the immigrant petition filed for the alien spouse.

Some of the red flags or indicators of a “sham marriage” are the following: short time between entry and marriage, unusual marriage history, large age discrepancy, unusual cultural differences, and low employment or financial status of the petitioner spouse.

When one or some of these factors are present, the spouses should gather documentation to prove the good faith of the marriage and be ready to address them at the interview.

The spouses must prepare evidence of their shared life. These include joint tax returns, joint bank account statements, lease agreements, joint mortgage statements, life insurance beneficiary designation, mail showing same residential address, cell phone bills, and photographs. There are no rules as to how much evidence would be sufficient, so in case the USCIS officer is not satisfied with the evidence given or would much rather hear from the spouses themselves, the couple must be prepared to be questioned thoroughly.

In all cases, but more so where a marriage has red flags, the couple must anticipate a hard interview. The USCIS officer can ask a wide variety of questions ranging from how the couple first met and who was present at their wedding, to the color of the bedroom wall and what the other spouse’s favorite meal is. At times, they may even be called back for a second interview, particularly when the USCIS detects fraud in the marriage.

In one case that our firm handled, the client and her spouse could not provide joint tax returns and other primary evidence to show a good faith marriage. The USCIS officer, probably suspecting that the marriage was fraudulent, scheduled them for a second interview. The alien spouse through our firm eventually obtained her green card.

At the interview, the couple must remember to always tell the truth and answer the questions without guessing or unnecessarily giving too many details. At the same time, they must know when not to answer a question. For example, they should not respond if they do not know or remember the answer at all, or if the officer’s question assumes or misstates a fact.

The couple must also try to be calm and focused throughout the interview, which could take an hour or even more. Needless to state, adequate preparation by the spouses is valuable. A lawyer can help the spouses prepare for the interview in addition to representing them at the interview itself.

One of our former clients was the beneficiary of a petition by her U.S. citizen spouse, who was over 20 years her senior. At her visa interview, she gave a few inconsistent answers which led the consul to deny her immigrant visa application, perhaps considering also the large age difference between the spouses. She was not assisted by an attorney at the time. She later retained our firm and we helped her appeal the visa denial. We were able to establish the “bona fides” of their marriage and she eventually got her green card.

There are criminal and civil consequences if a marriage is found to be fraudulent. Aside from liability for false testimony and perjury, a person who knowingly enters into a marriage for the purpose of evading immigration law may face imprisonment of up to 5 years and/or a maximum fine of $250,000.

Any subsequent petition filed on the alien’s behalf is also barred from being approved if the USCIS finds that a marriage was entered into to evade immigration laws. This includes petitions filed by employers, future spouses, and other relatives. No waiver is available if there has been a finding of marriage fraud.

Even a previously-granted conditional residency may be terminated if the USCIS later determines that the marriage was fraudulent, and in that case the alien may be placed in removal proceedings.

Appeals Court Rules in Favor of Aged-Out Alien

An appeals court recently ruled that all derivative beneficiaries who have aged-out may be able to have their petitions automatically converted to the appropriate category and retain the priority date issued in the original petition.

The decision by the 5th Circuit Court of Appeals in Khalid v. Holder came less than one week after another court, the 9th Circuit, held that automatic conversion under the Child Status Protection Act did not apply to F3 and F4 derivatives. F3 refers to married sons and daughters of U.S. citizens while F4 refers to brothers and sisters of adult U.S. citizens. This disagreement between different federal courts, also called a circuit split, will likely reach the U.S. Supreme Court for resolution.

Khalid v. Holder was about a child from Pakistan who entered the U.S. as a visitor. Khalid’s U.S. citizen aunt filed an F4 petition for her sister, Khalid’s mother. Khalid was 11 years old when the petition was filed. By the time his mother’s priority date became current, he was already 22 years old. Thus, when he applied for adjustment of status, Khalid was no longer a “child” so his application was denied.

After becoming a lawful permanent resident, Khalid’s mother filed a second preference petition for him. Pursuant to the automatic conversion clause of the CSPA, she asked that the petition be given the June 1996 priority date. However, the USCIS assigned the petition a priority date of November 2007, which was expected to be current by 2015. Khalid also filed for adjustment under Section 245(i) on the basis of his aunt’s petition but the USCIS also denied this application.

The government then placed Khalid under removal proceedings. Khalid argued that he could retain the June 2006 priority date. If that date were used, he would be eligible for a visa and need not leave the United States. Both the immigration judge and Board of Immigration Appeals disagreed with Khalid, prompting him to appeal to the 5th Circuit.

The provision at issue is Section 1153(h)(3), which says that if an alien’s age is 21 years or older the petition is automatically converted to the appropriate category and the alien retains the original priority date issued upon receipt of the original petition.

If the interpretation in Khalid is ultimately upheld, thousands of families, especially those coming from oversubscribed countries such as the Philippines, would be reunited faster.

Allowing priority date retention to F3 and F4 derivatives would significantly cut down visa waiting time. For example, say Mr. A, a national of the Philippines, was issued an immigrant visa on the basis of an F3 petition filed in 1992 by his U.S. citizen mother. Mr. A’s daughter, the derivative beneficiary in the original petition, was unable to immigrate because at the time that a visa number became available to her father, she was already 25 years old. Even after applying the proper CSPA formula, she was still over 21 years of age.
Mr. A then files an F2B petition for his daughter, which is the appropriate category for a petition filed by an LPR parent for an unmarried child 21 years of age or older.

If an F2B petition is filed today, it will take about 10 years before a visa becomes available to the beneficiary. Following the court’s interpretation in Khalid, the petition for the daughter can be given the priority date of the petition filed by her grandmother. With a 1992 priority date, the daughter will be able to adjust her status immediately.

This was the understanding of many immigration lawyers and even the BIA in an unpublished case. That was until 2009 when the BIA came out with a restrictive interpretation of the automatic conversion clause and denied F3 and F4 derivative beneficiaries the benefit of the provision.

The BIA reasoned that the CSPA was not meant to address delays in waiting for a visa and that the Congress could not have intended beneficiaries in new F2B petitions to cut in front of the waiting line.

The 5th Circuit criticized the BIA’s reading as contrary to the plain language of the law. The court found that the statute, read as a whole, clearly intended the automatic conversion clause to benefit all derivative beneficiaries.

Priority Date Retention Denied in CSPA Lawsuit

The Child Status Protection Act, enacted in 2002, was intended to address the adverse impact of a child’s reaching the age of 21 on his/her eligibility for an immigrant visa. It prevents the lengthy separation of families that results when the child “ages out”.

The CSPA fixes the child’s age according to certain rules, and this CSPA age and not the chronological age is used to determine if the child remains a “child” for immigration purposes.

A child’s age is calculated according to a formula depending on whether the person is the child of a U.S. citizen or green card holder, or a derivative in a family- or employment based category, asylum application, or under the Violence Against Women Act.

What if, even after using the CSPA formula, the child is still 21 years old or over? The CSPA has the automatic conversion clause which states that “If the age of the alien is determined …to be 21 years or older… the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

The automatic conversion clause has been interpreted by immigration lawyers and by the Board of Immigration Appeals (BIA) in an unpublished decision to mean that the LPR parent of the child (now-adult but unmarried) can file a second preference I-130 petition and the child will retain the priority date issued in the petition for the parent. Retention of the original priority date means that the family can avoid the long waiting lines in the F2B category where the backlog is currently 8 to 19 years.

However, on September 2, 2011, the Court of Appeals for the 9th Circuit ruled that the automatic conversion clause did not apply to derivative beneficiaries of F3 and F4 petitions. The court upheld the restrictive interpretation given by the BIA in another case.

The appeals case, De Osorio v. Mayorkas, was the consolidation of two lawsuits both challenging the BIA’s reading of the law. The first case was brought by Rosalina De Osorio involving a derivative beneficiary in an F3 petition. De Osorio obtained her green card through an F3 petition filed by her U.S. citizen mother. Her son was 13 at the time the F3 petition was filed but he aged out when her priority date became current. She later filed an F2B petition for her son and requested retention of the original F3 petition priority date.

The second case, Costelo v. Chertoff, was a class-action lawsuit brought by Teresita Costelo, involving a derivative in an F3 petition, and Lorenzo Ong, involving derivative beneficiaries of an F4 petition. Costelo got her green card through her U.S. citizen mother while Ong got his through his U.S. citizen sister. Their children were also under 21 when the F3 and F4 petitions respectively were filed but they aged out when the priority dates became current. Each of the plaintiffs had filed F2B petitions for the aged-out derivative beneficiaries and requested retention of the priority date of the original petition.

In both cases in this consolidated lawsuit, the requests for priority date retention were denied.

The BIA had said that the CSPA was intended to alleviate the consequences of administrative delays and not delays in visa number availability. It also said that priority date retention would allow the beneficiary to “jump” in front of the line and cause further delay to everyone else in queue.

One wonders how the government’s interpretation serves the purpose of the CSPA in keeping families intact, because the De Osorio decision effectively ensures that some families are kept apart for much longer.

Although this legal battle looks far from over, the court’s decision was a disheartening end to a nationwide class action lawsuit that disputed the government’s reading of the CSPA. A favorable decision would have paved the way for the reunification of thousands of families with their children who had aged out while waiting in line for an immigrant visa.

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