INQUIRER Global Nation

CALIFORNIA, United States?Lucia met Richard, a US citizen in Hong Kong, during one of her business trips.

After many months of courtship, Lucia and Richard got married. Both of them lived in the Philippines until they decided to travel to the United States and settle there permanently. Richard filed an immigrant petition for Lucia. While the petition was pending, Richard suffered a massive heart attack and died in 2008.

Lucia was told that with the death of her US citizen husband, the petition filed on her behalf was automatically revoked. She also could not file as a self-petitioning widow of a US citizen because their marriage was just for less than two years.

Lucia was devastated by the loss of her husband made worse by the revocation of her opportunity to stay in the US.

Widows? penalty ends

Recently, Lucia heard about a bill that was signed into law allowing widows to file for their own immigrant visa. This new bill allows widows whose marriages lasted less than two years to get a green card.

What is the new law?

On October 28, 2009, President Barack Obama signed into law the Department of Homeland Security Appropriations Bill Conference Report that contains immigration provisions benefiting widows and certain survivors of US citizen petitioners.

Prior to the passage of Public Law Number 111-83, petitions filed for spouses of US citizens are automatically revoked as soon as the petitioner dies. Only those widows married to US citizens for at least two years were allowed to self-petition for their own green cards. Those whose marriage lasted less than two years were not given the same opportunity.

The signing of the new law changes the rules.

It removes the two-year marriage requirement. It allows a widow(er) married less than two years at the time of the US citizen spouse?s death to file an I-360 application. This law does not require that the US citizen spouse has ever filed a petition. However, it requires that the surviving spouse has not remarried.

Unmarried children less than 21 years old of the widow(er) may be included on this Form I-360. If the petition is approved, the unmarried minor children may also obtain their immigrant visas.

For the widow(er) who is outside the US, she/he can apply for the I-360 petition and for an immigrant visa following the approval of the petition. The deadline for filing this self-petition is October 28, 2011.

Other survivors

Other than the surviving spouses of the US citizens, certain relatives of deceased petitioners also are granted immigration benefits by the new law. It adds Section 204(l) to the Immigration and Nationality Act allowing certain survivors to continue to receive their immigrant visas.

The requirements are: (1) there is a petition filed by the US citizen which has been approved or still pending on behalf of the survivor; (2) the survivor beneficiary or derivative beneficiary resided in the US at the time of the death of the petitioner, and (3) beneficiary continues to reside in the US.

Residing outside the US

A significant requirement that must be noted is that this additional provision benefits only those who are residing in the US. The following are the survivors covered by the law: (1) immediate relatives to include the spouse, parent, minor child of a US citizen; (2) family preference relatives (unmarried son or daughter of a US citizen, married son or daughter of a US citizen, spouse or child of a permanent resident, brother or sister of a citizen); (3) employment-based dependents (derivative beneficiaries); (4) refugees/asylees relative petition beneficiaries; (5) nonimmigrant in ?T? (victims of trafficking) or ?U? (victims of crime) status and (6) asylees.

For widows/widowers, there is no requirement that they should have resided in the US at the time of the death of their US citizen spouse or that they continue to reside in the US. Even if they reside in the Philippines, for example, they may still file an I-360 self-petition.

However, for certain other survivors in the other categories, the law is clear that the survivors should be in the US at the time of the death of the petitioner and should continue to reside there to benefit under the new law.

Waiting for CIS regulations

The old cliché that the petition dies with the petitioner now only applies to survivors who do not meet the above-enumerated requirements.

It is unfortunate that the new law limits the applicability of the new provision.

It would have been more justified if it applies to all survivors whether or not they are residing in the US. The law seems to address only the problem of undocumented survivors of deceased petitioners.

Since Public Law 111-83 was passed and signed into law last month, the application of its provision will depend on regulations that will be released by the Department of Homeland Security. Until then, certain survivors should wait before filing any immigration form at the Citizenship and Immigration Service.

It is important to emphasize that while this is an added immigration benefit for widows/widowers and survivors of deceased petitioners, the coverage is very limited also to certain categories of survivors.

Unless one is sure that he is qualified for the survivor?s immigration benefits, the petitioner should not take immediate action without proper guidance, lest he risks being a victim of bad interpretation which may have serious consequence.