Visa solutions for certain surviving relatives
BY ATTY. ALLISON AQUINO
THE enactment of the Fiscal Year 2010 Department of Homeland Security Bill (P.L 111-83) a year ago in October 2009 radically changed the visa eligibility of individuals whose Petitioner in a Relative Petition has passed away. The law addresses the problems encountered by so many individuals who are harmed because of the lengthy adjudication process and visa backlogs. The law now allows the Department of Homeland Security (DHS) to complete the adjudication of applications for permanent residence despite the death of the Petitioner under certain circumstances.
Until enactment of the Surviving Relative law, the immigration laws dictated that a petition filed by a relative is automatically revoked upon the death of the Petitioner. The dilemma of a loved one’s death is regrettably common due to the inordinate lengths of time that the DHS can take to process Relative Petitions. Once a Relative Petition in a preference category is approved placing a Beneficiary on a waiting list, the length of time waiting for the visa to become available can presently be well over ten to twenty years depending on the category.
If the Relative Petition had already been approved, the Beneficiary could apply for Humanitarian Reinstatement of the automatically revoked petition. If the Humanitarian Reinstatement is granted, then the Relative Petition would be reinstated and the individual allowed to apply for permanent residency once eligible to do so. If the Relative Petition had not yet been approved at the time of the Petitioner’s death, then the Beneficiary had no available recourse at all.
The Surviving Relative law revolutionizes the immigration service’s ability to process Relative Petitions in certain situations when a Petitioner passes away. The applicability of the law depends on various factors, such as the relationship between the Petitioner and Beneficiary, the physical location of the Beneficiary, and the existence of other certain relatives.
For widows of US Citizens, the law fixes what had become known as the Widow Penalty. The law now allows widows of US citizens who died within two years of the marriage to obtain permanent residency. Widows must file the necessary petitions within two years of the death and not be remarried. For those whose spouse died more than two years ago, the law mandates that the petition be filed no later than October 28, 2011.
The law also provides considerable benefits to all other categories of Beneficiaries, such as all children (regardless of age and marital status), parents, siblings and derivative beneficiaries. Under the new law, the DHS must finalize processing of a Relative Petition and/or Adjustment of Status even after the death of the Petitioner. This is applicable, however, only if the Beneficiary was present in the United States at the time of the Petitioner’s death and the Beneficiary continues to reside in the United States. As well, the Beneficiary must have a qualifying relative who can submit an Affidavit of Support or be exempt from the Affidavit of Support requirement.
For individuals who do not fulfill the requirements of the new law, the procedures for seeking humanitarian reinstatement are still available. However, the new law for surviving relatives is a tremendous advance since the law indicates that the petitions must be adjudicated unless it would not be in the public interest.
The law pertaining to surviving relatives has yet to be interpreted by the DHS; however, the law as plainly written is broad and expansive and should aid many individuals who have been waiting for excessive lengths of time. The death of a loved one is tragic enough. Thankfully, the immigration laws now acknowledge the injustice and aims to rectify the tragedy faced by surviving relatives.