DESPITE PETITIONER’S DEATH, SOME BENEFICIARIES MAY STILL GET GREEN CARD
By Reuben Seguritan
Is it still possible for the beneficiary to get a green card even if the petitioner dies? Before Section 204(l) of the Immigration and Nationality Act was enacted by Congress, the death of the petitioner automatically revoked the petition save for two instances. One was when the beneficiary was the widow or widower of a US citizen who might benefit as the surviving spouse only if they were married for at least two years or the so-called “Widow Penalty” and two, through reinstatement of an approved I-130 petition on humanitarian grounds.
With Section 204(l), those eligible for survivor immigration benefits expanded to include the following: the beneficiary of a pending or approved immediate relative visa petition; the beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries; any derivative beneficiary of a pending or approved employment-based visa petition; the beneficiary of a pending or approved Form I-730 or Refugee/Asylee Relative Petition; an alien admitted as a derivative “T” or “U” nonimmigrant; or a derivative asylee.
Also, the “widow penalty” has been eliminated allowing widows of U.S. citizens and their children to self-petition even if the marriage was less than two years when the petitioner died.
In order to benefit from Section 204(l), the surviving relative must be residing in the U.S. at the time the petitioner or qualifying relative died and must continue to reside in the U.S. Residence for this purpose means the “principal actual dwelling place in fact, without regard to intent.” For petitions with multiple beneficiaries, it is not required that all beneficiaries meet the residence requirement. If one beneficiary meets the residence requirement, all other beneficiaries, such as the spouse and minor children of the principal beneficiary, may benefit from this section.
Section 204(l) seeks to place the beneficiary in the same position but for the death of the petitioner. The USCIS will adjudicate the petition and other related applications as if the petitioner or qualifying relative did not die. Thus, if the qualifying beneficiary is eligible under Section 204(l), the USCIS will consider applications for waiver of inadmissibility due to fraud or criminal conviction, for instance. The beneficiary must establish extreme hardship suffered by the qualifying relative if he were alive and must prove that he deserves the favorable exercise of discretion.
If an affidavit of support is required, a Form I-864 of a substitute sponsor must be submitted. The substitute sponsor must be a U.S. citizen or lawful permanent resident, at least 18 years old, and must be related to the qualifying beneficiary. The substitute sponsor may be the applicant’s spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.
If the beneficiary was residing outside the U.S. when the petitioner died, Section 204(l) will not apply so he has to request a humanitarian reinstatement of the revoked family-based petition. Only approved petitions may be reinstated and not petitions where the petitioner died before the approval.
The following factors are considered in evaluating a humanitarian request: disruption of an established family unit; hardship to U.S. citizens or lawful permanent residents; if the beneficiary is elderly or in poor health; if the beneficiary has had a lengthy residence in the United States; if the beneficiary has no home to go to; undue delay by the DHS or consular officer in processing the petition and visa; and if the beneficiary has strong family ties in the United States.
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PROVISIONAL WAIVER FOR FAMILY MEMBERS INELIGIBLE TO ADJUST STATUS
By Reuben Seguritan
Many foreign nationals become lawful permanent residents by applying for an immigrant visa at the provisional unlawful presence waiver is available to the spouse, parents, and children of U.S. citizens who are ineligible to adjust status in the U.S. These include individuals who entered the U.S. as crewmen or without inspection, and those who entered the U.S. on a K-1 fiancé(e) visa but did not marry the U.S. citizen who petitioned them. To be eligible, inadmissibility must be solely based on having accrued unlawful presence in the U.S.
Prior rules required the applicant to apply for an immigrant visa abroad and apply for a waiver after denial of the visa. Waiver adjudication is a long process that can take several months or even years. The provisional waiver process shortens the time U.S. citizens are separated from their families by allowing qualified individuals to apply for the waiver in the U.S. and have it adjudicated before they leave the country for their immigrant visa interview.
In order to qualify, the applicant must be physically present in the U.S. and must at least be 17 years of age at the time of filing. The applicant must also demonstrate that the qualifying U.S. citizen relative will experience “extreme hardship” if the waiver is denied.
Individuals with final orders of exclusion, deportation, or removal as well as those who are currently in removal proceedings that are not administratively closed at the time of filing are ineligible for a provisional unlawful presence waiver. Individuals who have pending applications for permanent resident status with the USCIS are also not eligible to apply.
Also, where a USCIS officer finds that there is a reason to believe that the applicant is inadmissible based on grounds other than unlawful presence at the time of his or her immigrant visa interview, the request for provisional waiver will be denied.
For several months after the USCIS started accepting applications on March 4, 2013, there were many reports of provisional waiver application denials. USCIS officers adjudicating requests for I-601A waiver appeared to deny applications where there existed a reasonable suspicion that the applicant might be inadmissible based on grounds other than unlawful presence.
Request for I-601A waiver of applicants who have prior encounters with the law, for instance, was denied by adjudication officers, regardless of the sentence imposed or whether the offense is a crime involving moral turpitude.
To address this, the USCIS issued a memorandum clarifying that if the applicant’s criminal offense falls within the “petty offense” or “youthful offense” exception under the Immigration and Nationality Act (INA) or is not a crime involving moral turpitude, then the adjudication officer should not find a reason to believe that the applicant is subject to a ground of inadmissibility other than unlawful presence.
In this instance, the USCIS officer should continue to review the applicant’s record to determine whether he meets all the other requirements for provisional waiver and merits the favorable exercise of discretion.
The applicant cannot appeal a denial of the provisional waiver application, nor can he file a motion to reopen or reconsider the denial. However, he may file a new I-601A waiver application. The filing fee including the fee for biometrics is $670. The immigrant visa fee must have been paid prior to the filing of the I-601A waiver.
USCIS will notify the National Visa Center (NVC) when the request for an I-601A waiver is filed. NVC will place the case on hold while the waiver application is pending.
When the application is approved, USCIS will inform NVC of the decision which will then schedule the applicant for an immigrant visa interview. The case will be forwarded to the consular post for processing.
PROCESSING IMMIGRANT VISA IN HOME COUNTRY
By Reuben Seguritan
Many foreign nationals become lawful permanent residents by applying for an immigrant visa at a U.S. consulate abroad. This pathway to a green card is called “consular processing” and it requires a personal interview with a consular officer before the applicant can obtain an immigrant visa.
Consular processing is available in both family-based and employment-based immigration cases. Generally, petitioners filing I-130 and I-140 petitions will choose whether visa processing will take place in the United States through what is called adjustment of status, or at a U.S. consulate abroad. If consular processing is chosen, the USCIS will forward the approved I-130 or I-140 petition to the National Visa Center.
Each approved immigrant visa petition will be assigned an NVC case number. The first three letters of the case number designate the U.S. consulate, followed by the year the petition was received by the NVC. The case number applies to the entire family but each family member must submit an individual immigrant visa application and civil documents and pay the required fees.
The NVC then sends a fee bill to the visa applicant or to the attorney of record, if any. For family-based cases, there is a separate fee for the review of the Form I-864 Affidavit of Support. Fees may be paid online through electronic fund transfer or by mail with a cashier’s check or money order.
After fees are paid, the NVC will send visa application instructions to the applicant. Documents to be submitted generally include Form DS-230 Parts I and II, a copy of the passport, two passport-style photos, an original or certified copy of the birth certificate, and an original or certified copy of a police certificate from each country where the applicant resided for 6 months or longer after age 16.
In family-based cases, the applicant must also submit a Form I-864 signed by the sponsor, along with supporting documents such as tax returns, W-2 form, and a letter of employment. This requirement ensures that the applicant will not become a public charge. In employment-based cases, the applicant should submit a letter from the petitioning employer confirming the employment.
When all required documents have been submitted, the NVC will schedule the interview and send instructions to the applicant. The instructions will tell the applicant if any documents must be brought to the appointment, which will depend on the type of the application and on the circumstances of the applicant. The notice will also have a list of physicians who may conduct the required physical examination which will screen for relevant medical conditions. After the appointment is scheduled and instructions are sent, the file is transferred from the NVC to the consulate.
Visa applicants must appear personally at the interview. They should be prepared to respond to questions pertaining to their eligibility for the visa, including questions on prior U.S. immigration history and any criminal history. Marriage-based visa applicants should expect to be asked about their marital relationship. Employment-based applicants must be prepared to discuss their work history and answer questions regarding the proposed employment. The types of questions will vary from one applicant to another, especially since consular officers have wide discretion when it comes to questions to be asked.
If the applicant is found to be inadmissible to the U.S. and therefore ineligible for an immigrant visa, he/she may be able to apply for a waiver of the ground/s of inadmissibility. Many visa applicants get denied because of prior unlawful presence, misrepresentation, or criminal convictions.
If the visa application is approved, the consular officer issues the visa and stamps the applicant’s passport. The visa will be valid for travel to the U.S. within 6 months of issuance. The applicant will also be given a sealed envelope which he/she must give the officer at the port of entry. Finally, the new immigrant’s green card will be produced by the USCIS and mailed to the address provided in the visa application.
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REOPENING OR APPEALING DENIED IMMIGRATION CASE
If the USCIS denies an application or petition, it will send a denial notice to the applicant or petitioner explaining the reasons for the denial. The applicant or petitioner may appeal the decision to the USCIS Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA). The denial notice will provide information about his appeal rights.
The applicant or petitioner, with certain exceptions, may also file a motion to reopen or reconsider. If there is no right to appeal, the applicant or petitioner may still file a motion with the USCIS. Also, where the option to appeal is available and the decision made on appeal is still unfavorable, a motion to reopen or reconsider may be filed.
In a visa petition case, the beneficiary cannot file an appeal or motion unless he is also the petitioner such as in the case of a VAWA self-petitioner, widow/er of a citizen, and other visa petitions where the beneficiary self-petitions.
When an applicant or petitioner files an appeal, he is requesting a higher authority of the original deciding office to review the decision due to the incorrect application of law or misinterpretation of pertinent facts of the case.
Generally, a decision denying a family-based petition is appealable to the BIA. The appeal is made on Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of an INS Officer, and is filed with the office that originally made the decision. Most appeals, with certain exceptions, are made on Form I-290B, Notice of Appeal or Motion. The denial notice will provide instructions as to which form to use and where to file it.
When the applicant or petitioner appeals the decision to the AAO, the adjudicating officer who made the original decision will review the record. If the officer determines that reopening or reconsidering the case is not warranted, the case will be forwarded to the AAO or the BIA.
The appeal must be filed within the set period indicated in the denial notice which is generally 30 days from the date of the decision. A shorter period may apply to some cases. There is no extension for the set deadline.
A brief may be submitted with the appeal. The brief and other supporting evidence may be filed concurrently with the appeal. However, it may also be submitted after the appeal is filed. The applicant or petitioner is not required to submit a brief; however, he must provide an explanation as to why he believes the original decision was made in error. If the applicant or petitioner opts not to file a brief, failure to submit at least an explanation as to why the decision was made in error may result in the denial of the appeal.
When the applicant or petitioner files a motion to reconsider or reopen, he is requesting the adjudicating officer who originally made the decision to review it. A motion to reopen must be based on factual grounds such as the discovery of new evidence or changed circumstances and must be supported by affidavits and other documentary evidence. A motion to reconsider on the other hand must establish that the decision was incorrect based on an incorrect application of law and must be supported by pertinent precedent decisions.
Most motions are filed on Form I-290B, Notice of Appeal or Motion, generally, within 30 days from the date of the decision. Although a brief is not required, it may be filed with the motion. If not filed, the applicant or petitioner must provide a sufficient explanation as to why he believes the decision was made in error.
The USCIS tries to adjudicate motions within 90 days from receipt. If the motion is denied or dismissed, it may be appealed to the AAO. Although it may take longer, the AAO attempts to resolve appeals within six months from receipt.
In some cases, the USCIS can waive the fee for filing an appeal or motion as long as the fee for the underlying petition or application can also be waived.