Brian S. Weiss Immigration Law Blog on Lawyers.com

For many foreign nationals involved in the U.S. immigration process of acquiring a green card, especially through the family-based and employment-based immigration processes, long waits due to quota backlogs and visa retrogression is nothing new. Now imagine that while waiting patiently for an immigrant visa to become available, sometimes in excess of ten years, the family member who was sponsoring you or the principal immigrant in your case passes away. Under the former U.S. immigration laws, many cases were lost or revoked upon the death of the petitioner or principal alien except in limited circumstances and at the discretion of the government for “humanitarian reasons.” So not only was a family left distraught over the loss of their loved one, but it was further pained by the potential loss of immigrating legally to the U.S.

On October 28, 2009, President Obama signed the FY2010 Department of Homeland Security (DHS) Appropriations Act that provides a significant expansion of legal alternatives for surviving family members in immigration matters, including widow(er)’s of American citizens and certain surviving immigrants of family-based, employment-based, etc. cases. This new law allows many foreign nationals to retain the ability to acquire green card status in the U.S. despite the death of the petitioner or qualifying relative.

In widow(er) of U.S. citizen cases, including whether the widow(er) is living in the U.S. or abroad, the new law amends the Immigration and Nationality Act (INA) by removing the two-year marriage requirement in order for the foreign national to qualify as an immediate relative. Additionally, when a widow(er) qualifies as an immediate relative under the law, his or her unmarried minor children will also qualify for the same status. All other requirements for approval of an immigrant visa petition and adjustment of status/immigrant visa processing remain in effect. A visa petition may not be approved should the widow(er) remarry.

This new law also changes the governing regulations regarding an alien who was seeking to acquire an immigration benefit through a deceased “qualifying relative.” A new section, namely 204(l), was added to the INA allowing survivors (including derivative beneficiaries) of many immigrant visa petitions who resided in the United States at the time of death and continue to reside in the U.S., to continue with their immigrant visa petitions or refugee/asylee relative petitions as well as any adjustment of status application and related application they are entitled to under U.S. immigration laws. The United States Citizenship and Immigration Service (USCIS) is formulating a policy memorandum to ensure that USCIS uniformly and consistently adjudicates petitions and applications in light of these amendments to the INA.

As an immigration attorney in NY, it was often very difficult to console a client who recently lost a loved one and to explain to them that their or their family members’ ability to immigrate to the U.S. was potentially lost as well. The October 28^th law was a necessary and welcome change that redressed a serious problem with our immigration laws.