inside immigration information about marriage green cards and work visas in America

Green Card for Surviving Relatives – Death of I-130 Petitioner

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father gets son green cardBack in 1998 our client legally entered the USA with his B2 tourist visa. In 2001 he asked us to help his lawful permanent resident father filed an I-130 Petition for him, placing him on the Category F2B waiting list, as an unmarried adult. The waiting list for relatives from some countries to get their green cards through a family member is so long that many times the petitioner dies before the process is completed.

Unfortunately this happened when our client’s father died, rendering the I-130 Petition he filed for his son automatically “revoked.” Our client was very sad about his father’s death, as well as his loss of the opportunity for a green card.

Over the years, our client stayed in touch with us to see if there was anything we could do. He kept living in the USA hoping and praying that the immigration laws would change. Finally, a new law was approved, allowing us to apply for his green card, even though in his case the I-130 Petition was not approved before his father died.

We applied for a green card for our client in June 2012 and requested that the I-130 petition that his father filed back in 2001 be reinstated pursuant to the new law – INA Section 204 (l). After a green card interview, his green card was approved in record time in August 2012!

What is the New Law?

In 2010, a new law was passed in America allowing a wider range of relatives to get Permanent Resident Status (a green card) even though their petitioning relative had passed away. In the past, only husbands or wives could get their green card when their spouse was deceased. INA Section 204(l) expanded the eligibility for green cards to the Principal Beneficiaries and Derivative Beneficiaries in both employment-based and family-based preferences, as well as T non-immigrants, U non-immigrants and I-730 asylum derivatives. Another name for the new law is Public Law Number 111-83.

This article focuses on the Principal Beneficiaries and Derivative Beneficiaries in family-based preferences.

What is a Petitioning Relative?

A Petitioning Relative is the person who filed the I-130 Petition for Alien Relative. It might have been a parent, spouse, brother or sister.

What is a Principal Beneficiary and a Derivative Beneficiary?

If a parent files an I-130 Petition for a married son, the married son is the Principal Beneficiary. The married son’s wife is the Derivative Beneficiaries.

What is a Qualifying Relative?

The person who died may “qualify” one of their relatives for a green card. The Qualifying Relative who died needs to have been (a) the Petitioner (the one who filed the I-130 Petition) or (b) the Principal Beneficiary.

For example if a father filed an I-130 Petition for his married son and his wife, the father is the Petitioner and the son is the Principal Beneficiary, while the son’s wife is a Derivative Beneficiary. But if the married son died the new law allows the married son to be the Qualifying Relative so that his wife can get a green card.

What is a Family-Based Preference?

When certain relatives file an I-130 Petition, their relatives are put on a “Visa Bulletin” waiting list. Due to numerical limitations, they are divided into five “Family-Based Preference” categories:

Category F-1 is the single adult child of a U.S. Citizen
Category F-2A is the spouse and minor unmarried child of a Green Card Holder
Category F-2B is the unmarried adult child of a Green Card Holder
Category F-3 is the married child of a U.S. Citizen
Category F-4 is the brother or sister of a U.S. Citizen

What Are the Requirements for a Surviving Relative to get a Green Card?

If the surviving relative falls into one of the Family-Based Preference Categories above either as the Principal Beneficiary or a Derivative Beneficiary, here are the other requirements:

• The Principal Beneficiary and/or the Derivative Beneficiary had to have an I-130 Petition filed for them (it can be approved or still pending);
• The Principal Beneficiary and/or the Derivative Beneficiary had to live in the USA at the time of the death of the Qualifying Relative;
• The Principal Beneficiary and/or the Derivative Beneficiary must continue to reside in the USA;
• The Dept. of Homeland Security must decide that approval of a green card would not be “contrary to the public interest” (same rules about criminal convictions apply)
• There must be a substitute sponsor for the I-864 Affidavit of Support (only certain relatives qualify to be the substitute I-864 Affidavit of Support sponsor).

Is Reinstatement of an I-130 Petition Under INA Section 204(l) the Same as “Humanitarian Reinstatement of an I-130 Petition?” Can Both be Filed at the Same Time?

Reinstatement under INA Section 204(l) and Humanitarian Reinstatement are two different applications. One main different is that Reinstatement under INA Section 204(l) is provided for “by law” if the eligibility requirements (such as proof of residence in the USA, etc.) are proven, and the decision can be appealed.

Humanitarian Reinstatement is “discretionary” (up to the Immigration Officer) and cannot be appealed. The law allows both to be filed at the same time.

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