Death of a Petitioner

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.

source: http://balita.com/?p=226

What happens if a petition is filed by a Legal Permanent Resident (F2A or F2B) and the petitioner becomes a U.S. citizen before the applicant is called for an interview?

When the petitioner naturalizes, the F2A petition (spouse or minor child of a permanent resident) is automatically converted to an IR1 (spouse of an American) or IR2 (child of an American) petition. These visa categories are not subject to the visa quota system and will therefore always have visas available for the beneficiaries’ use if they qualify for visa issuance.

However, because there are no derivative beneficiaries allowed with IR petitions, children who are derivative applicants on a parent’s F2A application must each have a separate IR2 petition filed for them if the petitioner becomes a U.S. citizen. F2A petitioners who naturalize should make sure to file new IR2 petitions for their children (if they did not originally file separate petitions for them).

For F2B applicants (unmarried son/daughter of a permanent resident), their F2B petitions are automatically converted to the F1 category retaining the original priority date when their petitioners naturalize. Because of unique circumstances, the waiting period for the F1 category is longer than the F2B category in the Philippines. However, under Section 6 of the Child Status Protection Act (CSPA), the applicant (not the petitioner) can request exemption from the automatic conversion of the visa category from F2B to F1 by submitting to the Department of Homeland Security/U.S. Citizenship and Immigration Services (DHS/USCIS) a written statement that he/she elects to have such conversion revoked. The applicant may send the written request for retention of his/her F2B category to the DHS/USCIS office in Manila by fax at 301-2208 (Attn: Field Office Director) or by mail: DHS/USCIS, U.S. Embassy, 1201 Roxas Blvd., Ermita, Metro Manila 0930.

Source: http://manila.usembassy.gov/wwwh3201.html

F1 to F2B status

R&A COMPELS USCIS TO PROCESS F-1 TO F2B CONVERSION CASES
Post Date: 05/28/2005  
By: Attorneys Robert L. Reeves and Robert J. Dupont

Reeves and Associates compels the USCIS to finally implement the law requiring conversion of the F-1 visa category to the F-2B category in the US District Court lawsuit of Maniago et al v. Neufeld et. al, Case No. CV 04-7981, Judge R. Gary Klausner. Now, Filipino visa beneficiaries may immigrate faster.

The Immigration Nationality Act [INA] § 204(k) requires automatic conversion from F2B to F1 status when a parent-petitioner becomes a U.S. citizen. With the enactment of the Child Status Protection Act (CSPA), Congress specifically recognized a visa classification problem that was unique to Philippine immigrants. Unmarried sons and daughters of legal permanent residents (“F2B category”) have a shorter waiting period for their visa number to become current than unmarried sons and daughters of United States Citizens (“F1 category”). The F2B category is current for petitions filed in November 1995, whereas the F1 category is only current for petitions filed in January 1991. While it may appear that there is only a four year additional wait, it is actually 8 to 10 years because there are less visas available in this category. Now, naturalized petitioners may request a re-classification for their children beneficiaries to the F2B category so that they may immigrate earlier.

The law provides that an already naturalized petitioner may file a formal request to “re-classify” their children’s status to the F2B category. If that date is current, the Embassy must schedule an interview for issuance of the immigrant visa. Reeves & Associates found that Embassy officials regularly ignored requests of applicants to re-classify their immigrant visa category and interview the alien for their immigrant visa.

In September 2004, Reeves and Associates filed a lawsuit in the U.S. District Court and obtained relief for 16 clients who were waiting for visa processing in Embassies located in Manila, London, and Bahrain. In this litigation Attorney Robert Dupont of Reeves and Associates demanded that the Department of State, Embassy officials, and USCIS employees comply with the re-classification provisions as provided by CSPA.

At first, the State Department refused, claiming that petitions filed by the lawful permanent resident parents for their children under the age of 21 were not covered by the re-classification statute. The government argued that persons originally designated F2A (unmarried children under 21) did not benefit from the re-classification statute and that they would remain classified as F1. Reeves & Associates successfully argued that immigrants in the F2A visa category should be automatically re-classified as F2b upon reaching age 21.

R&A prevailed with all 16 plaintiffs and the USCIS has agreed to complete the re-classification of their cases. Petitioners from the Philippines who have naturalized must pay attention to the status of their petitions they have filed for their sons or daughters. If the son or daughter is still unmarried and their petition is current in the F2B category, they must make a formal request to be re-classified from F1 to F2B status. Petitioners must also follow up on their request and any effort to deny processing based on the fact that their original petition was F2A must be challenged.

If you require legal assistance with this complex issue, we recommend that you consult with an experienced attorney who has been successful in forcing government officials to grant the proper classification and expedite the issuance of the immigrant visa.

Source: http://www.rreeves.com/articles/immigration_en_10354.php

Problem with parents naturalizing

CSPA & Naturalization
By Michael J. Gurfinkel, Esq.

The Child Status Protection Act (CSPA) was a law that allowed certain children who “aged out” (turned 21) to still be processed for green cards as a “minor child”. There are three important sections in CSPA relating to children: Section 2, 3, and 6. While in many situations, a parent’s naturalization may help the child obtain CSPA benefits, there are other situations where the parents should not naturalize.

Section 2: Section 2 deals with a parent naturalizing before the child turns 21, and has petitioned the child before the child’s 21st birthday:

- The parent was a U.S. Citizen, and files a petition for his or her child before the child is 21 years of aged.
- The parent is an immigrant, files a petition for his or her minor child in the F-2A category, and then naturalizes before the child is 21 years old.
- The U.S Citizen parent petitions a married minor child (i.e. the child got married when he/she was 19 years of age), and the child terminates his marriage (i.e. through divorce, annulment, etc.) before the child is 21 years of age.

In each of these situations, the child’s age would be “locked in” as being under 21 years of age, and the child could continue to be processed as an “immediate relative” minor child for years after his 21st birthday, so long as he remains single. There is no mathematical calculation for children covered by Section 2, nor must they seek to acquire a visa within one year. So, it is good for a parent to naturalize before his child is 21 in Section 2 cases.

Section 3: Section 3 deals with minor children of immigrants (category F-2A) or derivative beneficiaries of their parent’s family or employment based petition. The child’s age is computed based on a mathematical formula, whereby you:

- Take the date the petition was filed.
- Take the date the petition was approved.
- Calculate how long it took USCIS, from the date of filing to the date of approval (i.e. did it take 1 month? 1 year? 2 years? for USCIS to approve the I-130 or I-140 petition?).
- Determine when the priority date on the case became “current” (or visa became available.)
- Determine how old the child was on the date that the priority date became current (i.e. 21 years 8 months? 23 years old? etc).
- Subtract from the child’s age how long it took USCIS to approved the petition (i.e. if the child was 21 years 8 months old, when the priority date became current, but it took USCIS 9 months to approved the petition, if you subtract 9 months from the child’s age, the child will be under 21).
- Finally, make sure the child pursues or applies for his/her visa within 1 year of when it becomes available.

If the child’s age under Section 3 is determined to be under 21, based on the foregoing mathematical computation, then the child’s age would be “locked in” as being a minor child, and he would be eligible for benefits under the Child Status Protection Act.

However, it is very important that if your child locks in his/her age under Section 3, then the parents should not naturalize once the child turns 21. This is because a child cannot lock in his/her age under Section 3, and then have the parent naturalize, since they would not be eligible for benefits under Section 2. (I.e. you cannot lock the child’s age in under Section 3, and then transfer the case to Section 2 upon the parent’s naturalization.)

I know of some cases where a parent had obtained a green card through labor certification, and their child qualified under the mathematical calculation of Section 3, thus locking in the child’s age at being under 21. After the child turned 21, the parent became eligible for naturalization, and the parent took that oath of citizenship after the child was 21. USCIS took the position that naturalization after the child turned 21 years of age terminated the child’s CSPA benefits. Remember, for Section 2 cases, the parent must naturalize BEFORE the child’s 21st birthday, not AFTER.

Section 6: In Section 6 cases, an immigrant parent files a petition in either the F-2A or F-2B category (single child of green card holder.) The child is 21 (or later turns 21), and his age cannot be calculated as being under 21 per the Section 3 computations. So, the child has “aged out,” cannot benefit from Section 3, and is stuck in the F-2B category. In years past, the F-2B category was always FASTER than F-1 (single child of US citizen), such that if the parent filed the petition as F-2B and then naturalized, it added several more years to the child’s waiting time for a green card. So, Filipino parents had to hold off from naturalizing. Section 6 enables Filipino parents to naturalize, but the child may elect to remain in the faster F-2B category, rather than having the F-2B petition converted to F-1. But this applies only if the petition was initially filed while the parent was an immigrant. Section 6 wont apply if the parent was already a citizen at the time the petition was filed.

As you can see, CSPA, as well as other U.S. immigration laws, can be very complex, confusing, and detailed. That is why it is so important that you seek the advice of a reputable attorney, who can evaluate each and every step you take in connection with pursuing immigration benefits for yourself and for your family. One misstep or wrong calculation on your part (due to your lack of knowledge of the intricacies of the laws) can have devastating consequences on your child.

source: http://www.gurfinkel.com/imm_updates29.htm