FAQ's about the 'Survivor Law' (Section 204(1) Part 3

In previous articles, I discussed some FAQs about the Survivor Law (Section 204(l). Here are more FAQs:

8.Q. : If my petitioner just died, can I already file for adjustment of status right now?

A: Even if you are covered by the Survivor Law, the priority date on your petition must nevertheless be current (or visa must be available) in order for you to be eligible to file for adjustment of status  the same as though the petitioner was still alive. For example, if a married person was petitioned by his American citizen parent in April 2001 (and thus he has the benefit of Section 245(i)), and the petitioner just recently died, the person would still not be able to file for adjustment of status at this time because the priority date on his F-3 petition is not yet current. (Right now, visas are available for married children of US citizens who were petitioned in 1992. So, if person was petitioned in 2001, he or she is not yet eligible for adjustment of status, even though he or she in the U.S. at the time the petitioner died.

9. Q: If I am covered by the Survivor Law, would I still need an Affidavit of Support?

A: Yes. If the petitioner died, you would still need an affidavit of support from a “substitute sponsor”, who are certain close relatives, including a spouse, parent, mother-in-law, father-in-law, brother, sister, son, daughter, son-in-law, or daughter-in-law of the beneficiary.

10.Q: What if I committed fraud. Could I still be eligible for a fraud waiver even though the “qualifying relative” has died?

A: Ordinarily, to be eligible for a fraud waiver, the alien who committed the fraud must have a spouse or parent who is a citizen or an immigrant, and demonstrate that their spouse or parent would suffer “extreme hardship” if the waiver is not granted. But what if the spouse or parent was the one who died? How can they show extreme hardship? The good news is that according to USCIS, “The fact that the [spouse or parent] has died will be noted in the decision and deemed to be the functional equivalent of a finding of extreme hardship”. In other words, if your spouse or parent has died, “extreme hardship” (for fraud waiver) will be presumed. However, the presumption of extreme hardship is not enough. There would still be work to be done to establish why the fraud should be forgiven, by demonstrating to the officer that the person who committed the fraud deserves a favorable exercise of discretion. You should consult an attorney to determine if you have enough ties or circumstances to overcome your fraud. But at least now it is possible to proceed with a fraud waiver even though the spouse or parent has died. 

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.  

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