Publications

July, 2009

DEATH OF A U.S. PETITIONER:
HOW DOES IT AFFECT ALIEN BENEFICIARY?

1. U.S. CITIZEN PETITION FOR AN ADULT CHILD:

The worldwide quota for unmarried children over 21 is delayed by 6 years. Because of this extended time, it poses an issue with the death of a parent. Only if a petition was approved before the parent died may a beneficiary receive permanent residence. The petition would then be based on humanitarian grounds if the Government believes that the case merits a favorable disposition and then the approval of permanent residence may be granted. The USCIS considers the hardship to the immediate U.S. family of the citizen or permanent resident. Age, health and existing ties to the U.S. are factors that would be taken into account.

2. DEATH OF A U.S. CITIZEN PETITION FOR A SPOUSE:

If a U.S. petitioning spouse dies before the petition is approved, the beneficiary may remain in the U.S. pending a decision by the USCIS, as to whether the USCIS would grant permanent residence on humanitarian merit. The law has allowed widows(er) of U.S. citizens who have been married for not less than 2 years at the time of death and the beneficiary has not remarried and has not legally separated from the deceased U.S. spouse to receive their permanent residence. At the time of death the minor children of the widow(er) are included as well.

There is a dispute in the Federal Courts regarding the treatment of alien beneficiary spouses who have not been married for 2 years. In the past, if a widow(er) has been married fewer than 2 years and has applied for adjustment of status, the USCIS has adhered to the ironclad rule to revoke the petition because of the death of the U.S. citizen spouse within 2 years of marriage. The 2 year rule was originally supposed to be a guard against marriage fraud. However, if the surviving alien spouse can prove the good faith of the marriage regardless of how long the marriage lasted, the surviving spouse can not be precluded from showing the good faith of the marriage according to recent Court decisions Otherwise this requirement of a 2 year marriage as an ironclad rule would make no sense and would lead to barring a good faith alien spouse from receiving merited permanent residence.

REVOCATION, AUTOMATIC

In the death of a U.S. citizen petition for a family member other than a spouse, the petition would be automatically revoked unless the petition has already been approved. A U.S. citizen or permanent resident family member may be substituted for the affidavit of support. In the case of a petition that has already been approved, the USCIS may consider factors in reinstating for humanitarian grounds such as where there will be a disruption in the family, or a hardship to a U.S. citizen or permanent resident, or where a beneficiary is elderly or in poor health, or has resided in the U.S. for a long time, or a lack of a home to go to, or undue delay in processing on the part of USCIS or of the Consulate.

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New York Immigration Lawyers > Immigration Publications > July 2009