New Law Protects Surviving Family Members

Under the same Appropriations Bill that eliminated the “widow penalty,” Congress voted to protect surviving family members in certain cases where, once a petition was filed, a petitioner or primary beneficiary passes away.

In the past, if a family based petitioner died prior to the beneficiary obtaining lawful permanent resident status, the application typically died as well, although in limited situations, a beneficiary could seek reinstatement for humanitarian reasons. In most cases, the beneficiary and any derivatives would no longer be able to obtain a green card through the petition.

Another common scenario was, if the primary beneficiary of a family based petition passed away, any derivative beneficiaries would lose the ability to obtain permanent residence through the petitioner’s petition for the now-deceased family member. For example, if a U.S. citizen filed a petition for his or her brother, the beneficiary’s spouse and minor children would eventually be able to obtain residence with the primary beneficiary. In the past, if the primary beneficiary passed away before obtaining permanent residency, the derivative benefits to the spouse and child died as well. The new law changes this harsh result and the derivative beneficiaries can continue to seek adjustment of status.

Similarly, in the past if an employment based beneficiary passed away while awaiting his or her adjustment of status, the spouse and minor children of the employee had no recourse and lost their eligibility for permanent residence through the employer’s petition for the deceased family member.

Depending upon the family based or employment based category in which a petition was filed and the beneficiary’s country of birth, applicants can often wait anywhere between five to more than ten years to obtain permanent residency. During these long waiting periods, it is an unfortunate reality that sometimes people pass away. Before the new bill was signed into law, an already devastating event was exacerbated by beneficiaries’ ineligibility to qualify for permanent residence as a result of their family’s loss.

However, as of October 28, 2009, a new law has changed these unfortunate consequences. According to the new law, ongoing protection is offered to many primary and derivative beneficiaries after a death. If an immigrant petition or adjustment of status application is pending and a family-based petitioner passes away, the primary and derivative beneficiaries can continue to seek permanent residence.

Similarly, if the primary beneficiary in a family based or employment based case passes away, his or her spouse and minor children can continue to seek permanent residence. There are requirements that the primary or derivative beneficiaries have to satisfy:

• the beneficiaries were in the US when the death occurred and
• the beneficiaries continue to reside in the US.

Moreover, this law covers the following types of applications:

• Immediate Relatives: a spouse, parent, or minor child of a US citizen
• All Family Preference Categories
• Employment based derivative beneficiaries: the spouse and/or minor
children of an employee on whose behalf an employer filed a visa petition
• Refugee / Asylee relative petition beneficiary
• Nonimmigrants in T visa (victims of trafficking) or U visa (victims of crimes) status

This new law is a step in the right direction and gives some relief to families that are already suffering a serious loss.

For more information regarding the new law concerning surviving beneficiaries and derivative beneficiaries and to see if you qualify to file under this law, please contact our office at (212) 748-3335 to schedule a consultation.

USCIS Announces H-1B Cap Has Been Reached

As of December 21, 2009, USCIS has received sufficient petitions to reach the statutory cap for FY2010. USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2010 that are received after December 21, 2009 USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009.

USCIS has published the latest H-1B cap count

U.S. Citizenship & Immigration Services has updated the H-1B cap count for Fiscal Year 2010. As of December 15, 2009, 64,200 H-1B cap-subject petitions had been filed towards the general H-1B cap of 65,000 per fiscal year.

To read the complete USCIS report, visit:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=138b6138f898d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD

R-A- granted asylum as a domestic violence victim after a 14 year struggle.

As reported by the Associated Press, Rody Alvarado (referred to as R-A- in court documents) was officially granted asylum by an Immigration Judge in San Francisco last week after fourteen years spent fighting her case through the courts.

Ms. Alvarado applied for asylum based on the persecution she experienced at the hands of her husband during a decade of brutal domestic violence from which the Guatemalan police and government were unwilling to protect her. Ms. Alvarado's asylum claim raised many complicated issues including whether asylum was appropriate for someone who suffered persecution at the hands of an individual rather than a government and whether a woman who experienced ongoing domestic violence in a country where she could not expect police protection could form a "particular social group" for asylum purposes.

The Obama administration has stated that regulations are being drafted that would allow victims of domestic violence a basis for asylum. If the regulations are adopted, they would be a long-awaited victory for Ms. Alvarado and others like her who have lived through horrific abuse at the hands of a domestic partner.


To read more about the history of this case: http://www.google.com/hostednews/ap/article/ALeqM5iWsaxqo-ZIskHpIdEaSdRfVHLPMgD9CLL5O80

Yee Durkin & Puri cordially invites you to the 1st YDP LAW FORUM

Date: Saturday, January 9, 2010
Time: 12:00pm - 4:00pm
Location: Lewis Scaria & Cote, LLC
50 Main Street, 15th Floor
White Plains, NY 10606
Cost of Forum: FREE

(Street Parking available; parking also available in Galleria Mall / Sears parking lot)

Featuring attorneys with experience in immigration, personal injury, collections, wills, business litigation, real estate, criminal defense, vehicle & traffic, divorce and family law.

Come meet the attorneys and ask your questions without having to pay a consultation fee!

Tsui Yee, Jennifer Durkin & Richa Puri
Yee Durkin & Puri, LLP
www.YDPimmigration.com
Practice Area: Immigration Law

Susan A. Scaria, Esq.
Lewis Scaria & Cote, LLC www.lscesq.com
Practice Area: Personal injury,Collections and Wills

Geoffrey N. Prime, Esq.
Prime & O'Brien, LLP
Practice Area: Criminal Defense Law and Vehicle & Traffic Law

Riyaz G. Bhimani, Esq.
Lane Sash & Larrabee LLP
www.lanesash.com
Practice Area: Business Litigation and Real Estate (commercial and residential)

Jill F. Spielberg
Harold, Salant, Strassfield & Spielberg
Practice Area: Matrimonial (Divorce)and Family Law


Please bring your family, friends and colleagues!

If you have questions or to RSVP, call Yee Durkin & Puri at (212) 748 – 3335