Dear Atty. Lou,
I have a single sister who was petitioned by my father. Her priority date is February 1995. My father died in May 2002. He was an immigrant when he petitioned my sister and then became a citizen after the petition. My sister lived here in the United States since 1985. She is now 72 years old. I just read in the newspaper that a new law has been passed that if a petitioner died then the petition can be pursued as long as the one being petitioned is here in the United States.
Can my sister get her green card? I hope you can respond this as soon as possible for my sister is sick and she needs to get medical benefits. Hopefully you can give priority to this letter for my sister needed it badly. Thank you very much.
FLC
Dear FLC,
It is true that on October 28, 2009, President Obama signed into law the Department of Homeland Security Appropriations Bill Conference Report that contained a provision to end the widow penalty and provide relief for beneficiaries of deceased petitioners.
Primarily, one of the immigration provisions benefit the widow(er)s of American citizens and their children. These widows may now self petition for an immigrant visa even if s/he married for less than two years at the time of the citizen spouse’s death. They may file an I-360 self petition from within two years of the law’s passage.
Aside from the widow provision, the law adds a new section of law that also benefits survivors of approved petitions filed be US citizens who die before their petition’s priority date became current or while their petition is pending at the time of the petitioner’s death. The requirement is that (1) petition must have been filed by the US citizen and this was pending or approved that the time of death; (2) beneficiary or derivative beneficiary resided in the United States at the time of the death and (3) beneficiary continues to reside in the United States.
The survivors that are covered by the law are follows: (1)immediate relatives including spouse, parent, minor child of a US citizen; (2)family preference relatives including unmarried son or daughter of a citizen, married son or daughter of a citizen, spouse or child of a permanent resident, brother or sister of a citizen; (3) employment based dependents (derivative beneficiaries); (4) refugee/asylee relative petition beneficiaries; (5)nonimmigrants in “T”(victims of trafficking) or “U”(victims of crime) status and (6)asylees.
In the case of your sister, she is a family preference relative and seemed to qualify as a surviving relative of an approved petition by your deceased US citizen father. She was in the United States at the time of the death of your father and continues to reside here. Unfortunately, much as we want to suggest that she take immediate action to file a self petition, we should wait until the Department of Homeland Security through the Citizenship and Immigration Service releases its regulations on how this new law is going to be implemented. I understand the urgency relating to the medication condition of your sister but let us just wait on how we shall be directed by regulations to obtain benefits based on this new law. There will be public information on this as soon as the regulations are released.
Atty. Lou
Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)
