Seguritan US Immigration Articles

Green Card Is Possible Despite Petitioner’s Death

Is it still possible for the beneficiary to get a green card even if petitioner dies? Before Section 204(l) of Immigration and Nationality Act was enacted by Congress, the death of the petitioner automatically revoked the petition save for two instances. One was when the beneficiary was the widow or widower of a US citizen who might benefit as the surviving spouse only if they were married for at least two years or the so-called “Widow Penalty” and two, through reinstatement of an approved I-130 petition on humanitarian grounds.

With Section 204(l), those eligible for survivor immigration benefits expanded to include the following: the beneficiary of a pending or approved immediate relative visa petition; the beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries; any derivative beneficiary of a pending or approved employment-based visa petition; the beneficiary of a pending or approved Form I-730 or Refugee/Asylee Relative Petition; an alien admitted as a derivative “T” or “U” nonimmigrant; or a derivative asylee.

Also, the “widow penalty” has been eliminated allowing widows of U.S. citizens and their children to self-petition even if the marriage was less than two years when the petitioner died.

In order to benefit from Section 204(l), the surviving relative must be residing in the U.S. at the time the petitioner or qualifying relative died and must continue to reside in the U.S. Residence for this purpose means the “principal actual dwelling place in fact, without regard to intent.” For petitions with multiple beneficiaries, it is not required that all beneficiaries meet the residence requirement. If one beneficiary meets the residence requirement, all other beneficiaries, such as the spouse and minor children of the principal beneficiary, may benefit from this section.

Section 204(l) seeks to place the beneficiary in the same position but for the death of the petitioner. The USCIS will adjudicate the petition and other related applications as if the petitioner or qualifying relative did not die. Thus, if the qualifying beneficiary is eligible under Section 204(l), the USCIS will consider applications for waiver of inadmissibility due to fraud or criminal conviction, for instance. The beneficiary must establish extreme hardship suffered by the qualifying relative if he were alive and must prove that he deserves the favorable exercise of discretion.

If an affidavit of support is required, a Form I-864 of a substitute sponsor must be submitted. The substitute sponsor must be a U.S. citizen or lawful permanent resident, at least 18 years old and must be related to the qualifying beneficiary. The substitute sponsor may be the applicant’s spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild or legal guardian.

If the beneficiary was residing outside the U.S. when the petitioner died, Section 204(l) will not apply so he has to request for a humanitarian reinstatement of the revoked family-based petition. Only approved petitions may be reinstated and not petitions where the petitioner died before the approval. 

The following factors are considered in evaluating a humanitarian request: disruption of an established family unit; hardship to U.S. citizens or lawful permanent residents; if the beneficiary is elderly or in poor health; if the beneficiary has had lengthy residence in the United States; if the beneficiary has no home to go to; undue delay by the DHS or consular officer in processing the petition and visa; and if the beneficiary has strong family ties in the United States.

Adjustment of Status of 245(i) Derivative Beneficiary

An alien who entered the U.S. without inspection, worked without authorization or overstayed a temporary visa is generally not eligible to adjust status to that of a lawful permanent resident. Congress passed a law in 1994 which allowed aliens, who were otherwise ineligible, to adjust their status in the United States.

After Section 245(i) expired, Congress extended it and allowed an alien to adjust status as long as he was the beneficiary of a labor certification application or immigrant visa petition filed on or before April 30, 2001. If an alien is the beneficiary of a qualifying petition or application and has paid the $1,000 penalty fee, his eligibility to adjust status is preserved.

At the same time, if the qualifying petition or labor certification was filed after January 14, 1998 the alien must be physically present in the U.S. as of December 21, 2000 in order to be eligible for Section 245(i) benefits.

The law allows “grandfathering” meaning the alien continues to benefit under 245(i) until he adjusts status and even on a basis other than the qualifying immigrant visa petition or labor certification.

Two types of aliens can be grandfathered under 245(i). The first refers to principal grandfathered aliens or the beneficiaries of visa petitions or labor certifications filed before April 30, 2001 if the petition or application was properly filed and approvable when filed. The second category pertains to spouses and children of principal grandfathered aliens, also called derivative grandfathered aliens.

To illustrate this, suppose that a nursing aide named Ellen entered the U.S. in 1995 but overstayed her tourist visa and has been living in the U.S. ever since. Suppose that she was the beneficiary of a labor certification application filed a few weeks before April 30, 2001 by her employer, a nursing home which unfortunately went out of business a few years later.

In 2006, let’s say another employer, this time a hospital, files another labor certification application and later an immigrant visa petition for Ellen. Can she adjust status? Because she is “grandfathered” under the old law, when her priority date is reached she can file for adjustment of status, notwithstanding her unlawful presence of more than 10 years.

In this example, Ellen is the principal grandfathered alien. Since the qualifying labor certification was filed after January 14, 1998 but before April 30, 2001, she must show when she finally applies for adjustment of status on the basis of the hospital’s visa petition that she was physically present in the U.S. on December 21, 2000.

If Ellen has a husband and daughter, they can be derivative grandfathered aliens who can apply for permanent resident status without the need of showing the required physical presence in the U.S. because Ellen meets that requirement.

But what if Ellen’s husband, a derivative grandfathered alien, is the beneficiary of an approved employment-based visa petition and his priority date was reached earlier, but he could not show physical presence in the U.S. as of December 21, 2000. Can he qualify for a 245(i) adjustment?

The Board of Immigration Appeals’ ruling in Matter of Svetislav Ilic tells us that he can. In that case, the respondent’s wife was the beneficiary of a family-based petition filed by her U.S. citizen sister. The respondent entered the U.S. without inspection in 2005 but he was the beneficiary of an approved I-140 petition with a priority date of April 22, 2004.

Removal proceedings were brought against him and he sought adjustment of status under Section 245(i) as a relief. The government opposed his application and said that since he is not adjusting on the basis of his wife’s family-based petition, he has become a “principal adjustment applicant” and he needs to demonstrate that he was in the U.S. as of December 21, 2000.

The BIA held that if the respondent’s wife meets the physical presence requirement, then she is grandfathered for 245(i) eligibility, and so is respondent even if he is adjusting on the basis of his employer’s I-140 petition.

Automatic Citizenship After Birth

When may a child born outside of the U.S. of alien parents acquire automatic citizenship? The Child Citizenship Act, embodied in Section 320 of the Immigration and Nationality Act (INA) provides that a child automatically becomes a U.S. citizen if all of the following conditions are met: the child has at least one parent, including an adoptive parent who is a U.S. citizen by birth or naturalization, the child is under 18, is residing in the U.S. pursuant to a lawful admission of permanent residence and is in the legal and physical custody of the U.S. citizen parent.

In order to acquire automatic citizenship under Section 320, the child must have been born on or after February 27, 2001, or was under 18 as of that date. For children who were already 18 years old on February 27, 2001, but who were under 18 in 1952, former INA 321(a) applies.

The Board of Immigration Appeals (BIA) recently decided a case involving Konan Waldo Douglas who was placed in removal proceedings and was found removable by an immigration judge. He was denied his claim to derivative citizenship because his mother’s naturalization took place before the legal separation of his parents.

Douglas was born in Jamaica on January 29, 1976 to his married parents, both citizens of Jamaica. He entered the United States as a lawful permanent resident on December 14, 1981. His mother’s naturalization was on April 13, 1988 and his parent’s divorce on July 25, 1990 took place while he was a lawful permanent resident and before he reached 18.

Former section 321(a) of the Act, the governing law in this case, provided that citizenship is automatically acquired by a child born outside the United States of alien parents in the following instances: (1) the naturalization of both parents; or (2) the naturalization of the surviving parent if one of the parents is deceased; or (3) the naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation.

The following conditions, however, must be met in all these three instances, one, such naturalization takes place while such child is under the age of eighteen years; and, two, such child is residing in the United States pursuant to a lawful admission for permanent residence at the time the parent(s) naturalized or thereafter begins to reside permanently in the United States.

The BIA disagreed with the immigration judge and held that Douglas acquired citizenship because he satisfied all the conditions under former section 321(a) before he reached 18.

The BIA in deciding the case went against precedent decisions by the Court of Appeals. Instead it relied on its earlier decision in a previous case that a child who has satisfied the statutory conditions of former section 321(a) of the Act before the age of 18 years has acquired U.S. citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after naturalization.

Employment Authorization for Abuse Victims

Under the Violence against Women Act (VAWA), battered spouses, children and parents of U.S. citizens and permanent residents may file an immigrant visa petition for themselves. The law allows them to self-petition for immigration benefits in order to seek safety and independence from the abuse.

According to the draft policy memorandum released by the USCIS approved VAWA self-petitioners are eligible for employment authorization based on the approval of the petition alone.

Under the policy memo, to get an employment authorization document (EAD) a petitioner with an approved I-360 and who is residing in the United States must file Form I-765 along with the filing fee and required photos with the Vermont Service Center.

Previously, they could obtain employment authorization only after being granted deferred action. Deferred action status means that an alien is a low priority for immigration enforcement or deportation and provides legal basis for employment authorization. When granted, the status is valid for 15 months, renewable in 12-month increments.

VAWA self-petitioners who are spouses, children or parents of the U.S. citizen abuser are also eligible for employment authorization without need of deferred action and even before approval of the I-360 self-petition, because they can file the I-485 adjustment application concurrently with the I-360 as immediate relatives.

The policy memo however does not change the policy when it comes to the principal beneficiary’s derivative children, who must still rely on a grant of deferred action in order to be eligible for an EAD.

Under the new policy memo, battered spouses of A (ambassador), E(iii) (Australian specialty occupation worker), G (foreign government or international organization representative) and H (alien specialty occupation workers) nonimmigrants are also eligible for employment authorization.

To be eligible for an EAD, the applicant must be the spouse who accompanied or followed to join a principal alien in the nonimmigrant category and he must be maintaining status as a nonimmigrant. The applicant or the applicant’s child must have been battered or has been the subject of extreme cruelty perpetrated by the principal alien spouse.

The battered spouse of the nonimmigrant must file Form I-765 along with the new supplemental Form I-765V with the Vermont Service Center, along with evidence of the qualifying nonimmigrant status of both the applicant and the abusive spouse; evidence of spousal relationship; and evidence of abuse such as police reports, court records, medical records, reports from social service agencies, and a protective order, if any.

If the applicant is unable to provide documentary evidence of the nonimmigrant spouse’s status, he must provide some identifying evidence such as name, place of birth, country of birth, date of birth, date of entry into the U.S., I-94 number, name of employer, etc.

If the application is approved, the EAD will be valid for a period of time equal to the remainder of the applicant’s current period of authorized stay or duration of status, if applicable.

Risk of Prolonged Travel Abroad

Permanent resident status is a privilege that may be lost and/or revoked if not maintained and preserved.

Abandonment is one of the ways a noncitizen can lose his lawful permanent resident (LPR) status. It is especially important for an LPR to know what constitutes abandonment in order to protect and preserve his status.

An LPR may leave the U.S. for short temporary visits abroad at any time. This is one of the privileges of being a permanent resident. Absence of more than six months but less than a year will ordinarily not trigger an examination of his intent to abandon residence upon reentry to the U.S. In most cases, the LPR will only need to show his permanent resident card when he returns to the U.S.

The LPR should keep in mind that it is not the length of his absence that will be scrutinized; it is his intent. Therefore, even if the absence from the U.S. is less than a year, there may still be a finding of abandonment of permanent residence. Factors of possible abandonment include employment abroad; presence of immediate family members who are not permanent residents; lack of fixed address in the U.S. and frequent prolonged absence from the U.S. Declaring oneself as a nonresident on tax returns may also result in a finding of abandonment of permanent residence status.

An absence from the U.S. of more than one year is generally treated as abandonment of permanent residence. Thus, an LPR who is planning to be away from the U.S. for more than one year should apply for reentry permit by filing Form I-131. It is recommended that the LPR who frequently travels abroad obtain reentry permit which is generally valid for up to two years.

The reentry permit will serve as proof of the LPR’s intent that he is merely returning from a temporary trip abroad and therefore he did not abandon U.S. residence. However, the LPR cannot merely rely on the reentry permit to be readmitted to the U.S. Even with the reentry permit, the LPR may still be found to have abandoned his U.S. residence.

In order to establish that there was no intent to abandon permanent residence, the LPR may show evidence of employment, business or properties in the U.S., home ownership in the U.S., maintenance of U.S. bank accounts, maintaining a U.S. driver’s license and family ties in the U.S., among others.

A permanent resident may maintain his permanent residence status by obtaining a social secuirty number and renewing his permanent resident card before expiration. Filing tax returns in the U.S. is crucial even when the noncitizen is not in the United States.

Maintenance of permanent residence is important for naturalization purposes. One of the requirements in a citizenship application is continuous residence in the United States for at least 3 or 5 years. The applicant must not have, within the last 3 or 5 years, been outside of the U.S. for one year or more. Absences of less than 6 months generally do not break continuous residence, while absences of more than 6 months but less than 1 year raise a rebuttable presumption of abandonment of residence.

When his LPR status is challenged as having been abandoned, he has the right to have that issue determined by a judge. It is important to note that even while in removal proceedings, the LPR remains a permanent resident and continues to be so until a final administrative order is issued that changes that status.

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