Green cards for family members when the 'worker' dies

Dear Atty. Gurfinkel,

My husband was petitioned by his employer several years ago. He obtained the labor certification from the Department of Labor, his employer’s I-140 petition was approved, and he had filed for adjustment of status.

Unfortunately, the priority date for his case retrogressed, and while waiting for his adjustment of status, my poor husband had a heart attack and died. I’m totally devastated over the loss of my husband, but what happens now with his employer’s case? Is there any hope for me and our kids, or did the case “die” with my husband?

Very truly yours,

A.F.

Dear A.F.,

There could still be hope for you and your children under the new “Survivor Law” (Section 204(l)). That law allows family members, in certain circumstances, to get their green cards through the worker’s employment based petition, even if the worker had died.

Before the enactment of the Survivor Law, the rule was that if the principal beneficiary (meaning the person who was directly petitioned) died, then the petition died with that person. Even humanitarian revalidation was not available if the principal beneficiary died. The Survivor Law changed that, and allows family members of a deceased worker (i.e. spouse and minor children) to continue the case and adjust status (obtain their green cards) even when the principal beneficiary of an employment-based visa petition has died.

The basic requirements are:

1. One of the derivative beneficiaries (i.e. spouse or children of the worker) “resided” in the United States when the “qualifying relative” died. In this particular situation, USCIS has defined “qualifying relative” as including, “the principal beneficiary in an employment-based visa petition…”, meaning the actual worker who was petitioned.

2. The derivative beneficiary continues “to reside in the United States on the date of the decision on the pending petition or application”, meaning you were in the United States when the petition or adjustment of status was approved); and

3. Giving you a green card would not be against the “public interest”, (i.e. you are not a criminal, terrorist, etc.) However, almost all Filipinos are hard working and law-abiding, so I cannot imagine how it would be against the public interest to deny them a green card.

I want to emphasize that there are several additional requirements, such as the need for a fraud waiver (if you committed fraud), the need for Section 245(i) if you were out of status, as well as other issues related to admissibility and eligibility.

Also, this new Survivor Law applies to other cases, situations, and family members. This article focuses only on the situation where a worker has died, to let people know that the worker’s surviving one spouse and children may still have hope to pursue their green cards based on the deceased worker’s employment based petition. However, it is important that you seek the advice of a reputable attorney, who can evaluate your situation, and determine your eligibility, so that your spouse would not have died in vain, but instead would have helped you achieve your American Dream.

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