Author: immilawyernj

If you are a beneficiary of an approved Form I-130, Petition for Alien Relative, but your petitioner has died before you get your green card, you may know that immigration will automatically cancel or revoke your petition. The thought of restarting the entire application process can be frustrating and overwhelming, but there may be something you can do. You can request reinstatement of your petition by filing a Humanitarian Reinstatement (HR) Application.

To be eligible, you must have an approved I-130 and have a qualifying “substitute” sponsor. Your substitute sponsor must:

Have completed Form I-864, Affidavit of Support;Be a U.S. citizen, national, or lawful permanent resident;Be at least 18 years old; andBe your spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.

The first thing you must do before filing a Humanitarian Reinstatement Application is inform the National Visa Center (NVC) that your Petitioner has died. You do not have to wait for your petition to become current because it will result in further delay in processing your application. HR cannot be granted if the petitioner died while the petition was pending. Additionally, NVC does not have the power to grant HR, only the USCIS office that originally approved the petition has the power to do that. Once NVC learns of the death of your Petitioner, it will return the petition to the USCIS office which originally approved the petition.

USCIS will then send a notice to the address used by the deceased Petitioner when he filed the petition in your behalf, so it would be a good idea to maintain good relations with anyone else living at that address. Once that notice is received, that is when you file your HR application. You need to make a written request with supporting evidence to the USCIS office that originally approved the petition.

When you request HR, be sure to include:

Your name and your deceased petitioner’s name;The receipt number of the petition;Your alien registration number (A number), if you have one;Your petitioner’s A number, if he or she had one;Your petitioner’s death certificate (certified translation is required, if not in English); andForm I-864 or Form I-864W, Affidavit of Support, from your substitute sponsor.

While relief may be available, it is up to you to prove to USCIS that it should not cancel or revoke your petition for humanitarian reasons. Some factors that USCIS looks at in determining eligibility for HR are: whether you have a home to go to, if you have strong ties in the United States, whether your family unity will be disrupted, and whether you are elderly.

If you believe that you are eligible for Humanitarian Reinstatement, please feel free to schedule a consultation with our office.

DOMA, or the “Defense of Marriage Act”, was passed in 1996 by Congress and signed into law by President Bill Clinton. Section 3 of DOMA is the part that prevented the federal government from recognizing any marriages between gay or lesbian couples for the purpose of federal laws or programs, even if those couples are considered legally married by their home state.

However, in 2013, in United States v. Windsor (2013), the U.S. Supreme Court declared Section 3 unconstitutional because it violated equal protection rights. In that case, Edith Windsor sued the United States after she was forced to pay over $363,000 in estate taxes after her same-sex spouse died. Had her spouse been a man, she would not have had to pay the tax. Following this decision, Windsor’s marriage will be federally recognized.

The Supreme Court case did not challenge Section 2 of DOMA, which says that individual states do not legally have to acknowledge the relationships of gay and lesbian couples who were married in another state. Only the section that dealt with federal recognition was ruled unconstitutional.

What this basically means is that if a couple’s home state allows them to be legally married, then they will be able to get federal benefits. Federal benefits include: health insurance (and hospital visitation rights) and pension protections for federal employees’ spouses, social security benefits for widows and widowers, support and benefits for military spouses, joint income tax filing and exemption from federal estate taxes, immigration protections for binational couples—binational couples will be allowed to sponsor foreign-born spouses for U.S. residency, and many more.

Those that are married in a state where marriage equality is legal, but live in a state where it is not may have a harder time receiving benefits. Because different organizations base benefits off of where a couple lives, as opposed to where they were married, those who are legally married but live in a state without marriage equality may not be able to take part in these newly accessible benefits.

Following the Supreme Court decision President Obama declared that federal agencies including United States Citizenship and Immigration Services (USCIS) implement regulations which will allow benefits for same-sex couples.

This means that now same-sex couples can apply for benefits of their spouses, and or fiancé. The spouse will be required to show the marriage was valid in the state where it occurred and prove the bonafides of the relationship.

In order to apply for same-sex marriage the citizen spouse should file for a Petition for Alien Relative [Form I-130] on behalf of the Beneficiary or Immigrant spouse for further information about processing these applications please schedule a consultation with our office.

Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the U.S. must travel abroad and obtain an immigrant visa.

Unlawful presence (UP) from “overstaying” a visa, entering without inspection, or failing to timely depart when ordered to do so bars aliens from returning for 3 to 10 years once they leave the country. Individuals who have accrued more than 180 days of UP while in the U.S. must obtain a waiver of inadmissibility to overcome the UP bars under section 212(a)(9)(B) of the Immigration and Nationality Act (INA) before they can return to the U.S. Because UP is also a ground of inadmissibility, USCs are separated from family who must stay abroad to obtain a waiver or “consular process.”

The new provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for UP, to apply for a waiver in the U.S. and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad. This new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family relatives are obtaining immigrant visas to become lawful permanent residents of the U.S.

Who Can Apply?

To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:

Be 17 years of age or older.Be an immediate relative of a U.S. citizen.Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.Not have been scheduled for an immigrant visa interview by Department of State (DOS) before January 3, 2013.Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 C.F.R. 212.7(e) and the Form I-601A and its instructions.

You are NOT eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:

You are subject to one or more grounds of inadmissibility other than unlawful presence.DOS initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013. “Scheduled” means the date on which National Visa Center (NVC) took the action to schedule the case—not the date of the visa interview appointment.You are in removal proceedings that have not been administratively closed.At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the EIOR calendar to continue your removal proceedings.You do not meet one or more of the requirements, as outlined in the Form I-601A and its instructions.

What Happens Next?

After you submit your Form I-601A, USCIS will notify the NVC that it received your Provisional Waiver application and NVC will not schedule your immigrant visa interview appointment until USCIS informs NVC of its determination about your I-601A application. If an immigrant visa interview is granted, NVC will schedule it at the U.S. embassy or consulate you designated and notify you of your interview appointment date. You will then need to depart the U.S. to attend your immigrant visa interview at the designated location. If you fail to depart and attend your immigrant visa interview, the provisional unlawful presence waiver will not take effect, and the approval may no longer be valid.

Note: Immediate relatives of U.S. citizens who are eligible for the new provisional unlawful presence waiver can still choose to apply for a waiver using the existing process by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer has determined that he or she is inadmissible to the United States.

For any further inquiries, please contact our office for a consultation.