Immigrating to the United States to live here permanently is an important and complex decision.  In general, to immigrate a foreign citizen must be petitioned or sponsored by a U.S. citizen relative(s), U.S. lawful permanent resident, or by a prospective employer, and be the beneficiary of an approved petition.  Thereafter, the beneficiary must wait the required amount of time. If the sponsor is a U.S. citizen spouse or employer, the beneficiary will have to wait only for the paperwork to be completed. If the sponsor is another relative, then they will have to wait in line for their priority date to become current. Each year, the demand for immigrant visa numbers for family-based and employment-based sponsorships far exceeds the supply.  This has resulted in massive backlogs with immigrants waiting years for their priority date (their place in line) to become available.

For many years, United States Citizenship and Immigration Services (USCIS) had taken the position that the law did not permit the beneficiary of a visa petition to obtain approval of the petition if the petitioner died while the petition remained pending. In those cases, USCIS automatically revokes the immigrant visa petition, leaving surviving family members with no means to obtain immigrant status based on that petition.

On October 28, 2009, President Obama passed into law a landmark immigration bill, ending the automatic revocation of a visa petition when the petitioner dies.  This has provided significant relief to immigrants and their families who have waiting for their priority dates to become current only to have the petition revoked upon the death of the petitioner.

The new law changes the governing regulations with respect to an alien who is seeking an immigration benefit through a deceased “qualifying relative.” Specifically, under this new law, surviving family members residing in the United States at the time the petitioner or principal beneficiary died, may adjust status to permanent residence when their priority date is reached, as long as they continue to reside in the United States.  This includes the continued processing of the immigrant visa application for the spouse of the U.S. citizen or the unmarried child under age of 21 of a U.S. citizen, even if the U.S. citizen petitioner dies while the immigrant visa petition is pending or has been approved.

This option is also available for spouses and unmarried children of permanent residents, unmarried children over the age of 21 of U.S. citizens, married children of a U.S. citizen, brothers and sisters of U.S. citizens and the derivative children as well as derivative beneficiaries of pending or approved employment-based immigrant visa petitions.

Note:  This change does not benefit family members residing outside the United States.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 453-5335. 

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