Can I qual­ify for a green card de­spite the pe­ti­tioner’s death?

Watchmen Daily Journal - - OPINION - By Atty. Ken­neth Reyes

Con­sider this com­mon fac­tual sit­u­a­tion. You are over 21 years old and your US cit­i­zen par­ent pe­ti­tions you while you are in­side the United States. Since this is a pref­er­ence cat­e­gory, you have to wait many years for your pri­or­ity date to be cur­rent. As the years go by, your pe­ti­tion­ing par­ent dies which in turn re­vokes the pe­ti­tion. Can you still ap­ply for your green card when your pri­or­ity date be­comes cur­rent?

Un­der Sec­tion 204(l) of the im­mi­gra­tion and na­tion­al­ity act, you may ap­ply for a green card de­spite the death of the pe­ti­tioner once your pri­or­ity date be­comes cur­rent as long as 1) you were in the United States at the time of the Pe­ti­tioner’s death, and 2) you con­tin­u­ously resided in the United States un­til the present time when you ap­ply for ad­just­ment of sta­tus. This pro­vi­sion does not ap­ply to ben­e­fi­cia­ries that are out­side the

pend­ing Pe ons.

This av­enue is avail­able to all fam­ily based pe ons as out­lined in INA sec on 204(l)(2). This in­cludes 1) im­me­di­ate rela ve pe ons and 2) pref­er­ence fam­ily pe ons such as un­mar­ried sons and daugh­ters of us ci zens, spouses and un­mar­ried sons and daugh­ters of lpr, mar­ried sons and daugh­ters of us ci zens, and broth­ers and sis­ters of us ci zens.

Deriva ve ben­e­fi­cia­ries of pend­ing or ap­proved em­ploy­ment‐ based im­mi­grant visa pe ons are also cov­ered by this sec on. This in­cludes the spouse and un­mar­ried chil­dren un­der age 21 of an in­di­vid­ual who was spon­sored un­der the

em­ploy­ment‐based cat­e­gory.

If you fail to meet the re­quire­ments of INA 204(l) be­cause you did not con nu­ously re­side in the US since the death of the Pe oner, you may s ll try to re­in­state the Pe on un­der 8 CFR Sec. 205.1(a)(3) Hu­man­i­tar­ian Re­in­state­ment. The DHS (Depart­ment of Home­land Se­cu­rity) may ex­er­cise dis­cre on “for hu­man­i­tar­ian rea­sons” to re­in­state the pe on and to al­low the Af­fi­davit of Sup­port re­quire­ments to be sa sfied by the qual­i­fy­ing I‐864 of a spouse, par­ent, mother‐ in‐law, fa­ther‐in‐law, sis­ter‐ in‐law, brother‐in‐law, grand­par­ent, or grand­child or le­gal guardian of the ben­e­fi­ciary, as long as the pe on was “ap­proved” prior to the Pe oner’s death.

DHS dis­cre on does not mean “guar­an­teed” ap­proval. The case will be eval­u­ated on a case by case ba­sis. Some of the fac­tors that the DHS may con­sider are 1) dis­rup on of an es­tab­lished fam­ily unit; 2) hard­ship to US ci zens or law­ful per­ma­nent res­i­dents; 3) ben­e­fi­ciary is el­derly or in poor health; 4) ben­e­fi­ciary has had lengthy res­i­dence in the US; 4) ben­e­fi­ciary has no home to go to; 5)un­due de­lay by US­CIS or con­sular of­fi­cer in pro­cess­ing pe on and visa; 6) and Ben­e­fi­ciary has strong fam­ily es in the United States.

The ben­e­fi­ciary must be pre­pared to show proof of the orig­i­nal I‐130 that was filed, proof of I‐130 ap­proval if ap­proved, a copy of the Pe oner’s death cer fi­cate, proof of subs tute spon­sor’s rela on­ship to the ben­e­fi­ciary, and meet all the I‐864 re­quire­ments.

Newspapers in English

Newspapers from Philippines

© PressReader. All rights reserved.