andisash Posted June 18, 2012 Report Share Posted June 18, 2012 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!! Link to comment
JoeF Posted June 18, 2012 Report Share Posted June 18, 2012 Sorry to hear that. She should discuss her situation with a good immigration lawyer, to see if there may be something based on humanitarian grounds. Link to comment
BigJoe5 Posted June 18, 2012 Report Share Posted June 18, 2012 INA 204(l) {lower case "L"} may provide relief. See an attorney about it fast. http://www.uscis.gov/USCIS/Laws/Memoranda/2011/January/Death-of-Qualifying-Relative.pdf http://www.uscis.gov/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/Widow-Policy-204l-PM-Comment-5-11-2010.pdf [DRAFT Version] Link to comment
habeebulla Posted June 18, 2012 Report Share Posted June 18, 2012 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. http://www.***************** http://**********.html 1. New Immigration Provision for Surviving Family Members ©MurthyDotCom 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. ©MurthyDotCom New Options for Widows and Widowers of U.S. Citizens ©MurthyDotCom 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. ©MurthyDotCom New Options for Other Surviving Relatives ©MurthyDotCom 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. ©MurthyDotCom Widows and Widowers ©MurthyDotCom 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. ©MurthyDotCom Deadlines and Remarriage Issues ©MurthyDotCom 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. ©MurthyDotCom Other Relatives ©MurthyDotCom 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. ©MurthyDotCom 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 relative. ©MurthyDotCom 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. ©MurthyDotCom 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. ©MurthyDotCom 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. ©MurthyDotCom Conclusion ©MurthyDotCom 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. ©MurthyDotCom Link to comment
chakrakr Posted June 19, 2012 Report Share Posted June 19, 2012 If I remember correct there was a change in law couple of years back to allow the dependents to continue their GC process in such cases. Belle once shared this in reply to a similar question. Link to comment
andisash Posted June 19, 2012 Author Report Share Posted June 19, 2012 Need more inputs on this..please advise..i am sure she will consult a lawyer but was curious to know if she can continue to stay here without having to leave the country. Link to comment
Belle Posted June 19, 2012 Report Share Posted June 19, 2012 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. Link to comment
Attorney_22 Posted June 19, 2012 Report Share Posted June 19, 2012 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. Link to comment
andisash Posted June 19, 2012 Author Report Share Posted June 19, 2012 This is a great relief for my friend. Thank god USCIS has a solution for cases like hers. Thank you to all of you for your inputs Link to comment
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