Survivor Benefits: Immigration cases affected by death
- By Carolina Antonini
- February 10, 2014
- Family and General Immigration
I was reflecting upon the recent passing of my father and was grateful that along with the immense grief we suffered, we did not have to deal with immigration issues. As an immigrant family, we were lucky that upon his passing, there were no outstanding petitions and no immigration proceedings pending. I am, however, acutely aware that others have to experience both the grief of death as well as the immigration consequences it can bring. Here are four examples of immigration cases affected by death:
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1. Widows of USA citizens: Widows (ers) of a US citizen can still seek to adjust their status based on their marriage. For those who have a marriage petition (I-130) pending or approved before the death of the citizen, their petition is automatically converted to a widow petition. Those that do not have a petition pending upon the death of their spouse can file a widow self petition (I-360). The widow petition process does not guarantee that status will be granted, as applicants must nevertheless be found to be admissible by immigration authorities. Further, re-marriage impedes the widow petition and adjustment process. Protection is also offered to surviving immediate relatives of abusive citizens and permanent residents under the Violence Against Women Act.
2. Surviving beneficiaries of family petitions: When a petitioning citizen or resident dies AFTER having filed a relative petition (I-130), the beneficiaries of that petition can continue with the process provided they have a substitute sponsor and can show humanitarian reasons exists. The law that allows this substitution is the Family Sponsor Immigration Act.
The substitute sponsor must be at least 18 years of age, living in the US and meet all financial requirements for the Affidavit of Support. The following relations can substitute: spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.
The government is not required in any given case to reinstate approval of a visa petition, thus reinstatement is a matter of discretion based on the facts of each individual case. There is not an exhaustive list of reasons that may be considered humanitarian but they can include: disruption of a family unit, hardship to a close US citizen or lawful permanent resident relative; hardship to relatives abroad and long residence in the US.
3. Applicants for permanent residence who require a waiver of a ground of inadmissibility: For those seeking to obtain permanent residence but who have some ground of inadmissibility, there are waivers built into immigration laws. A person with a criminal conviction, or a fraud, for example, may obtain permanent residence in spite of their derogatory history if they are granted a waiver. Most immigration waivers require an applicant to show hardship to a citizen or lawful permanent resident qualifying relative. An applicant whose qualifying relative has died is unable to seek such waiver.
4. Aliens in removal proceedings seeking relief predicated upon the hardship of a qualifying relative: In removal proceedings there is a humanitarian form of relief that, if granted, leads to permanent residence. This form of relief is called Cancellation of Removal for Certain Non-Permanent Residents. This relief requires an applicant to show residence in the US for 10 years or more, good moral character, and a heightened hardship to a qualifying citizen or lawful resident relative. Again, if the qualifying relative dies, the applicant is unable to proceed with this form of relief.
If you find yourself in any of these situations or if death has affected your immigration case and you have the type of case where there is no death exemption, the immigration law attorneys of Antonini & Cohen can still try for prosecutorial discretion. The government has wide discretion in cases and when presented with sufficient humanitarian facts, will exercise that discretion favorable before a sad and worthy situation.
Please call the immigration law attorneys of Antonini & Cohen to schedule a consultation today - 404.850.9394 - or click here to fill out a contact form. We are ready to discuss survivorship benefits and review your legal options with you and your family.