Demise of primary applicant!


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Experts, please advise

My close friend's husband suddenly expired after illness. He & my friend were on EAD for the past 5 years. Their PD is March 2005 EB3 India. As he was the primary applicant, now what happens to my friend and her status. Will she have to leave the country? She is employed and has 2 grown up children....Please help!!

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There is a new law signed in October 2009 which protects surviving family members of a primary. Please read following link for more details. There was another Murthy bulletin (Nov 2009, week 2) text also attached.



1. New Immigration Provision for Surviving Family Members


October 28, 2009 marked the enactment of some significant changes in immigration law.

These provisions provide for potential immigration benefits to certain surviving spouses and

other relatives. Previously, most of these individuals would have been ineligible for immigration

benefits following the death of the sponsoring relative or the primary beneficiary. These

changes impact both family- and employment-based cases. An individual who previously was

ineligible due to the death of a relative may be able to utilize the changes in the law.


New Options for Widows and Widowers of U.S. Citizens


The new law relates to two groups of relatives. The first portion involves widows or widowers

of U.S. citizens. Before the change in the law, a widow or widower of a U.S. citizen, could not

petition for permanent residence based on the marriage, unless the marriage had been at

least two years in duration prior to the death of the U.S. citizen spouse. The new law

eliminates the two-year requirement. Such an individual can self-petition for immigration

benefits, regardless of the length of time the couple was married before the death of the U.S.

citizen spouse. These cases may be filed whether or not the surviving spouse is within the

United States.


New Options for Other Surviving Relatives


The second portion of the new law relates to other types of surviving relatives. Prior to the

change in the law, with limited exception, if a petitioning family member died, the case ended.

Similarly, if the primary beneficiary in an employment-based case died before green card

approval, the case ended. The dependant family members could not obtain benefits through

the case. The changes in the law provide for case continuation in immediate-relative cases, as

well as employment-based cases, refugee / asylee cases, and T nonimmigrant cases. These

cases require that the surviving relative is residing in the United States at the time of the death

of the qualifying relative, and that the individual continues to reside in the United States.


Widows and Widowers


As stated above, the new law eliminates the requirement that the marriage be at least two

years in duration in order for the widow or widower to qualify for a marriage-based green card.

Such individuals can now file I-360 Special Immigrant self-petitions, even if the marriage is

less than two years in duration before the U.S. citizen spouse dies. Of course, it is necessary

to demonstrate that the marriage was entered into in good faith, and was terminated by the

death of the U.S. citizen spouse. These provisions are available whether or not the U.S. citizen

spouse initiated a green card case prior to dying. These provisions apply only to the spouse of

a U.S. citizen, not the spouse of a permanent resident.


Deadlines and Remarriage Issues


For the widow/er of a U.S. citizen who was married for less than two years at the time of the

U.S. citizen's death, and for whom the death occurred prior to the change in the law, it is

necessary to file a petition within two years of the change in the law. For a death that occurs

after the change in the law, the filing must be made within two years after the death. The law

does not change for one who was married for two years or more prior to the spouse's death.

Such a case had to be filed within two years of the death. Additionally, the surviving spouse

does not qualify for this benefit if s/he subsequently has remarried. S/he may qualify, however,

under the general survivor benefit provisions for immediate relatives, described below.


Other Relatives


Other changes involving various relatives and scenarios are described below. As stated, these

changes provide potential benefits only for relatives who reside in the United States. Unlike the

widow/er cases, these require the filing of an affidavit of support. However, this may be filed by

certain substitute sponsors.


Immediate Relatives

The law provides survivor benefits for all immediate relatives, as defined in immigration law.

Immediate relatives include minor children of U.S. citizens, parents of U.S. citizens as well as

spouses of U.S. citizens. The law requires that the U.S. citizen relative must have filed the

necessary immigration petition. That is, these provisions are only available if there is a

pending or approved immediate relative (Form I-130) petition that was filed by the deceased



Preference Relatives

The law also provides survivor benefits for family preference relatives and their derivative

beneficiaries. Family preference relatives are the relatives, other than immediate relatives, for

whom an I-130 petition has been filed. These include: spouses and children (minors or

unmarried, over 21) of permanent residents, sons and daughters (over 21 unmarried or

married) of U.S. citizens, and siblings of U.S. citizens. Such relatives can qualify for

immigration benefits even if the petitioning relative dies, provided they reside in the United

States at the time of the relative's death, and continue to do so. The new law requires that the

I-130 petition was approved or pending prior to the death of the petitioner. The benefits here

also extend to the spouse and minor children of the direct beneficiary.


Employment-Based Derivative Family Members

The same type of survivor benefit is extended to derivative family members in pending

employment-based green card cases. This is limited to those cases that have reached the

employer petition stage. The employer petition in EB1, EB2, and EB3 cases is the I-140

petition. The PERM labor certification alone is not sufficient. This means that the surviving

spouse and minor children can obtain permanent resident status as derivative beneficiaries,

even if the individual for whom the case was filed dies. This is a very favorable change. While

this issue only arises in a small number of cases, it is something we at the Murthy Law Firm do

see on occasion. These situations elicit our sympathy, often involving untimely deaths from

tragic diseases or accidents, leaving behind young children and spouses who would face

arduous difficulties if they had to leave the United States.


Other Types of Cases

The surviving family members residing in the U.S. are also eligible for dependant immigration

benefits in cases involving pending or approved refugee / asylee relative petitions, T

nonimmigrant (victims of trafficking), or U nonimmigrant (victims of crime) cases, as well as

those of asylees.




This law provides some very positive humanitarian relief for surviving spouses. Previously,

there were only very limited opportunities in certain family-based cases to continue after the

death of the relative. This led to some very unfortunate situations for surviving relatives. This

undoubtedly will help some deserving families.


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Yes, there was a law signed in the end of 2009 that allows a beneficiary of an I-140 or I-130 to continue eligibility if the primary (or the petitioner in case of I-130) dies. Your friends family should be fine. They probably just need a consultation.

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Chakrakr is correct; your friend may be eligible for protections pursuant to INA 204(l). It is therefore advisable to have your friend contact a qualified U.S. immigration attorney to discuss the matter in detail. The Murthy Law Firm has very well-regarded Green Card and Special Projects Departments with extensive experience who would be able to provide her with excellent assistance. Please feel free to have her call our office to schedule a consultation with one of our attorneys.

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