FAQs about the 'Survivor Law' (section 204(l)) Part 1

On October 29, 2009, President Obama signed into law the Department of Homeland Security Appropriations Act, which included a new law (Section 204(l)) of the Immigration and Nationality Act. This new law, which I call the “Survivor Law”, allows certain people who are under petition to continue to be eligible for a green card even though the “qualifying relative” has died (after meeting specific conditions). Here are some frequently asked questions about this Survivor Law.

1. Q: Who is considered a “qualifying relative”?

A: The “qualifying relative”, (meaning the person who died, and thus triggering eligibility under the Survivor Law”) includes the following people:

1. The petitioner in a family-based immigrant visa petition. (This means the person who filed the petition, such as a parent, spouse, brother, sister, etc.)

2. The principal beneficiary in a family-based visa petition. For example, if a parent petitioned a married son in the F-3 category, the son is the “principal beneficiary”. If the son dies, his surviving spouse and minor children could still be eligible for green cards. (Under old rules governing “humanitarian revalidation,” there was no hope for derivative family members if the principal beneficiary died. Now, if the principal beneficiary dies, the spouse and the minor children can still be processed for green cards. This is a tremendous change.)

3. The principal beneficiary in an employment-based petition case. This means the worker in a labor certification case. For example, if a person was being petitioned by an employer through PERM/Labor Certification, and that “worker” died, the spouse and minor children of the worker could still be processed for green cards, even though the principal beneficiary had died.

2. Q: Who are the people who can benefit from the Survivor Law?

A: The people who can benefit from (or are covered by) the Survivor Law are the following:

1. Persons who were petitioned as “immediate relatives” (spouse, parent, or child under 21 years of age of a US citizen). Note that this law includes not only approved petitions, but also “pending” petitions. (Under the old Humanitarian Revalidation law, one of the requirements was that the petition had to already have been “approved.”)

2. Persons who were petitioned in the following family-based categories (including their derivative spouse and/or minor child where applicable):

1. Single adult child of US citizen (F-1);

2. Spouse and minor unmarried child of a green card holder (F-2A);

3. Unmarried adult child of green card holder (F-2B);

4. Married child of US citizen (F-3); and

5. Brothers and sisters of US citizens (F-4).

3. Derivative beneficiaries (spouse and/or child) of a pending or approved employment based petition, through Labor Certification/PERM. Therefore, if your spouse was under petition by an employer, but your spouse died, you and your children may still be eligible to pursue your own green cards, even though the “worker” has died.

4. Beneficiary of pending or approved petitions for asylees, refugees, crime victims, and victims of human trafficking.

If you think that you (or someone you know) may be covered by, or benefit from, this Survivor Law, I strongly suggest, that you seek the advice of a reputable attorney who can evaluate your situation, and determine your eligibility. I know in my office, we’ve already had several people who were in the US at the time that their petitioners died and we were able to get them green cards under the law. In fact, we already featured such people on my television show, Citizen Pinoy. In a future article, I will discuss more FAQ’s about the Survivor Law.

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