Visa Lawyer Blog

Previously we reported about the new procedures affecting surviving spouses of US petitioners that passed away. Now the Vermont Service Center issued some guidance on the procedure for making a request for humanitarian reinstatement of I-130 petitions that have been revoked based on the death of the petitioner.

The process for requesting humanitarian reinstatement consideration begins with the
notification to either the Service Center or the National Visa Center of the death of the
petitioner. If the death certificate is accompanied by a letter indicating that the beneficiary wishes to be considered for humanitarian reinstatement, the Service Center will respond with a letter confirming that the petition has been automatically revoked (8 CFR 205.1(a)(3)(C)). The letter then provides a list of requirements that must be met to have the petition considered for humanitarian reinstatement under 8 CFR 205.1(a)(3)(C)(2).

In order for the reinstatement to be considered, the following documents must be provided:

The request for reinstatement must be in writing by the beneficiary of the original petition or
substitute sponsor if the beneficiary is a minor child.

– Provide as much available documentation to identify and document the humanitarian reason for reinstatement. Such documentation may include, but is not limited to:
a. Evidence of a long-time residence and any equity in the U.S.

b. Evidence of relationship to other family members with evidence of their immigration status in the U.S.

c. Evidence of health-related factors that would establish the need for the reinstatement of the petition.

d. Evidence of current political or religious conditions in the beneficiary’s country of origin that would indicate that the beneficiary would suffer if not permitted to immigrate to the U.S.

Please note: Economic depression, as is found in many regions of the world, is not considered to be an example of a harsh result contrary to the goal of family reunification unless it is of such an extreme nature as to possibly cause physical harm to the beneficiary.

– The new sponsor is required to submit an original Form I-864, Affidavit of Support, to show that he or she has adequate means of financial support and that the beneficiary of the petition is not likely to become a public charge.

a. The substitute sponsor must complete the Form I-864, Affidavit of Support.

b. The Form I-864 must contain an original signature of the sponsor.

c. The new sponsor must be an immediate family member or a legal guardian of the
beneficiary, such as a 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, or grandchild child at least 18 years of age.

d. Submit evidence that will establish the new sponsor’s immigration status or U.S. citizenship.

Continue reading

Finally some good news coming from USCIS. The Immigration Service today issued guidance on requesting deferred action for surviving spouses of U.S. citizens who died before the second anniversary of their marriage. Surviving spouses qualify for this temporary program if they were married to, but not legally separated from, their U.S. citizen spouse at the time of that spouse’s death; did not remarry; and are currently residing in the United States. Until this Memo there has been a lot of confusion in this area of law.

Until there is a legislative solution to remedy the situation commonly referred to as the “widow penalty,” USCIS is providing interim administrative relief in the form of deferred action to surviving spouses whose U.S. citizen spouses died before the second anniversary of their marriage. The “widow penalty” prevents widow(er)s of deceased U.S. citizens, who were married less than two years at the time of the U.S. citizen’s death, from becoming permanent residents based on the marriage. Under this action USCIS also will consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law.

Surviving spouses qualify for deferred action regardless of whether the U.S. citizen spouse filed a Form I- 130 petition for them. Surviving spouses may ask to have their qualifying children included in their deferred action request. To be considered a “qualifying child” of a surviving spouse, the child must be younger than age 21 or otherwise qualify as a child when the deferred action request is submitted; currently reside in the United States; and be unmarried. Surviving spouses who apply for deferred action will need to file Form I-360 with supporting documentation and the $375 filing fee with the Vermont Service Center. Work authorization will be available to surviving spouses and qualifying children who are granted deferred action and who can establish economic necessity.

Any Immigration attorney with clients from the Philippines, China and Mexico, knows about the suffering of families from these countries due to the lengthy visas backlogs. Now immigrants across the country are suing the federal government to try to get their adult children into the country without another lengthy waits, sometimes decades.

Under U.S. immigration law, children 21 and older cannot immigrate under their parents’ applications for green cards. Under the Child Status Protection Act of 2002, aimed at preventing children from “aging out” due to lengthy processing times, means these grown children should be allowed into the country soon after their parents file new paperwork on their behalf. But the government argues that many of those who aged out during the wait are now new applicants and must start from the beginning. They want them to start all over, this will result in many years of wait for these relatives.

The waiting crisis resulted in other social crisis. The dilemma has prompted many immigrant parents to urge their adult children to remain single while the lawsuits are pending or until they get green cards. That’s because permanent residents cannot apply for their married children to get green cards and must wait to become U.S. citizens to be able to do so.