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Adjudicating Adjustment Applications of Surviving Relatives

The United States Citizenship and Immigration Services (USCIS) has started to approve adjustment of status applications filed under the new law by surviving family members of deceased petitioners. We filed an adjustment application last December on behalf of a daughter of a deceased father and after three months, the said daughter received her green card. 

The father had filed his I-130 petition in January 1998 but because of the huge backlog in the family-based 2B preference for her country, her visa number became available only in April 2009. She did not file her adjustment application at that time because her father had died in October 2004 and therefore, the I-130 petition was automatically revoked. 

The new law which became effective last October 28 was part of the Department of Homeland Security Appropriations Act for FY 2010 (Public Law 111-83). Two measures benefiting surviving relatives were contained in that law. 

The first measure ended the so-called widow penalty by allowing widows of U.S. citizens and their children to self-petition for themselves although they had been married only for less than two years. The second measure added a new provision to the Immigration and Nationality Act granting immigration relief to other surviving relatives. 

The surviving relatives with pending or approved petitions who benefit under the second measure of the law are the spouse, parent and minor children of a U.S. citizen; the married or unmarried son or daughter of a citizen; the spouse or child of a permanent resident and the brother or sister of a citizen. Also covered are the derivative beneficiaries of pending or approved employment-based petitions, the beneficiaries of asylee/refugee relative petitioner and nonimmigrant in T or U status and asylees. 

One of the requirements of the second measure is that the surviving relative must be residing in the U.S. at the time of death of the petitioner and must continue to reside in the U.S. Residence in the U.S. should mean domicile and not physical presence. So that if the surviving relative was on vacation abroad at the time of the petitioner’s death or was with the petitioner at the time of his/her death abroad, the relative should be eligible to file an adjustment application. 

There is a question as to whether the second measure that refers to other surviving relatives should be applied retroactively. It is not clear from the language of the law whether applicants whose qualifying relative died before the enactment of the law are covered. Some point out that they are not because while the first measure that ended the widow penalty specifically provided for its retroactive application to “transition cases”, no similar language was provided in the second measure referring to other relatives. In the case of our client, the USCIS adjudication office agreed with us that the law should be applied retroactively. 

The law also provides that any “related applications” may be adjudicated with the petition or the adjustment of status application. It could be argued that this provision allows the filing of waiver applications by applicants who are inadmissible or removable under existing immigration laws.

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