Tuesday, December 22, 2009

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.