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Post image for With PL 111-83 INA 204l Deceased Petitioner and Substitution Issue, Adjustment of Status Approval for Antiguan Client in Georgia

CASE: Adjustment of Status / 245i / Public Law 111-83 / INA Section 204(l) Amendment Issue (less stringent humanitarian reinstatement process)

CLIENT: Antiguan

LOCATION: Georgia

Our Antiguan client came to the U.S. on a F-1 student visa in 1996 and later changed to H-1B. His employer did not renew his H-1B status, so he fell out of his status.

Prior to retaining our firm, his father filed an I-130 petition for him back in March 1998 (F2B Classification). The I-130 petition was approved by the INS in 1998.  However, he could not apply for his green card until his priority date became current. Unfortunately, his father (I-130 Petitioner) passed away before he was eligible to apply for his green card.

Before 2009, through the more stringent humanitarian reinstatement process, the INS (USCIS now) allowed a foreign national’s spouse, parent, mother-in-law, father-in-law, sibling, child who is at least 18 years of age, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian to become a substitute sponsor if a family-based visa petitioner dies following the approval of the I-130 petition but before the foreign national obtains permanent residence. Even if the I-130 had been approved, it would be deemed revoked once the petitioner dies. At that time, reinstatement of the revoked petition was not automatic despite a substitute sponsor being available. And the process was still a matter of discretion. The INS had to determine whether “humanitarian reinstatement” was appropriate based on the individual facts of the case.  Thus, the applicant must demonstrate exceptional hardship and request for humanitarian reinstatement if his or her petitioner is deceased before the petition gets reinstated.

Public Law 111-83 (2009) eased this burden for beneficiaries whose petitioners died prior to their adjustment of status application.  The new regulation did not require “humanitarian reinstatement” anymore.  Therefore, as long as they meet certain qualifications such as having physical presence in the U.S. at the time of the petitioner’s death and also having a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible to adjust.

Our client contacted our office in 2013 and retained our office for his adjustment of status. Our client’s US citizen brother was willing to become a substitute sponsor and he met the physical presence requirement. Once retained, our office filed an I-485 adjustment of status application along with form I-485A and other supporting documents. It was filed on July 24, 2013.

On April 10, 2014, our client appeared at the Atlanta USCIS office for his adjustment interview.  Attorney Yu accompanied him at the interview, and the interview went pretty smoothly. Attorney Yu explained the new regulations and explained to them that the old humanitarian reinstatement standards were not needed anymore. Eventually, our client’s adjustment of status application was approved by the USCIS on August 14, 2014.  After a long wait, our client is finally a green card holder.

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CASE: Adjustment of Status / Public Law 111-83 / INA Section 204(l) Amendment Issue (less stringent humanitarian reinstatement process)

CLIENT: Filipina

LOCATION: Chicago, IL / Los Angeles, CA

Our Filipina client came to the U.S. on a B-2 visitor’s visa in 2001 and overstayed her status. Currently, she resides in Los Angeles, California.

Prior to retaining our firm, her father filed an I-130 petition for her back in 1987. As some of you know, priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The I-130 petition was approved by the INS in 1987.  However, she could not apply for her green card until her priority date became current.  Therefore, she had to wait for more than 15 years in order to even apply for her green card.

Unfortunately, her father (I-130 Petitioner) passed away before she was eligible to apply for her green card.  She was placed in removal proceedings after the DHS found out about her overstay. She was under the impression that nothing could be done since her father (the I-130) petitioner died.

We explained that we can terminate removal proceedings and we can help her adjust status with a substitute sponsor. Our office was retained in November 2010, and we later filed her I-485 Adjustment of Status application with a substitute sponsor (her US Citizen sister) and a Request to Join in a Motion to Terminate with the Department of Homeland Security in Los Angeles.

Before 2009, through the more stringent humanitarian reinstatement process, the INS (USCIS now) allowed the foreign national’s spouse, parent, mother-in-law, father-in-law, sibling, child who is at least 18 years of age, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian to become a substitute sponsor if a family-based visa petitioner dies following the approval of the I-130 petition but before the foreign national obtains permanent residence. Even if the I-130 had been approved, it would be deemed revoked once the petitioner dies. At that time, reinstatement of the revoked petition was not automatic despite a substitute sponsor being available. And the process was still a matter of discretion. The INS had to determine whether “humanitarian reinstatement” was appropriate based on the individual facts of the case.  Thus, the applicant must demonstrate exceptional hardship and request for humanitarian reinstatement if his or her petitioner is deceased before the petition gets reinstated.

Public Law 111-83 (2009) eased this burden for beneficiaries whose petitioners died prior to their adjustment of status application.  The new regulation does not require “humanitarian reinstatement” anymore.  Therefore, as long as they meet certain qualifications such as having physical presence in the U.S. at the time of the petitioner’s death and also having a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible to adjust.

Our client’s US citizen sister was willing to become a substitute sponsor and she met the physical presence requirement. On January 5, 2011, our office filed a request to join in a Motion to Terminate with the Los Angeles DHS. Our client’s master calendar hearing was scheduled on February 2, 2011 at the Los Angeles Immigration Court. Prior to her hearing, the DHS counsel in Los Angeles agreed to terminate our client’s proceedings.

With this joint motion, Attorney Sung Hee (Glen) Yu from our office represented our client at the Los Angeles Immigration Court.  Attorney Yu explained the new regulation and how this law applied to our client’s situation before the Immigration Judge.  The Immigration Judge granted termination without prejudice and her case was transferred USCIS Chicago Field Office for adjudication of her I-485 application.

On April 5, 2011, our client appeared at Chicago CIS office for her adjustment interview.  Attorney Yu accompanied her at the interview, and the interview went pretty smoothly. Attorney Yu explained the new regulations and explained them that the old humanitarian reinstatement standards were not needed anymore.

However, on October 3, 2011, the USCIS issued a Request for Evidence (RFE) for our client. The CIS argued that our client was not able to show humanitarian reasons for reinstatement.

It seemed though that the RFE did not take into account PL 111-83 and the new 2009 law. Under the new law, the Petition survives the death of the Petitioner also in categories of beneficiaries as long as they were residing in the U.S. on the date the Petitioner passed away and continue to reside in the U.S., including married sons and daughters of citizens and green card holders. A substitute sponsor who is a qualifying relative, such a U.S. Citizen sibling, shall still be needed, but the humanitarian factors are not.

Since our client’s case clearly fell under the amendments for INA Section 204(l), our office filed a Response to RFE on October 13, 2011 including a cover brief and 14 exhibits. We attached the law itself and highlighted the relevant parts.  Eventually, our client’s adjustment application was approved by the USCIS on February 15, 2012.  After a long wait, our client is finally a green card holder.

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For other family immigration adjustment of status success stories with deceased petitioner and substitution issues, please click here.

For other success stories, please click here.

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CASE: Termination of Removal Proceedings / Adjustment of Status
ISSUES: 245i; Deceased Petitioner
CLIENT: Filipino
LOCATION: Cleveland, Ohio

This case involves a situation where the beneficiaries had to wait over ten years for priority dates to be current, only to have the petitioner die prior to that happening. Our client, his wife and son, are from the Philippines and came to the U.S. on B-2 visitor’s visas back in 2002. They overstayed their tourist status and have been out of status ever since.

Prior to retaining our firm, our client’s mother filed an I-130 petition for him back in 1992.  As some of you may know, the priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The I-130 petition was approved by the INS in 1992.  However, our client could not apply for his green card until his priority date became current. He had to wait for almost 20 years in order to even apply for his green card.

Unfortunately, his mother (I-130 Petitioner) passed away before he was eligible to apply for his green card.  He and his family was placed in removal proceedings after the DHS found out about his overstay. He was under the impression that nothing could be done since his mother (the I-130) petitioner died.

Once he contacted our office, we explained that an October 2009 law can help his entire family obtain a green card. We can terminate removal proceedings and apply for adjustment of status application with a substitute sponsor – his U.S. Citizen sister. We also informed him that Section 245i would make him eligible to adjust despite his overstay.

Our office was retained in August 2010, and we later filed his I-485 Adjustment of Status application with a substitute sponsor (his US Citizen sister) and a Request to Join in a Motion to Terminate with the Department of Homeland Security before his immigration hearing. We explained this to the Judge and government attorney at the Cleveland Immigration Court.

As we explained in a previous Success Story, the regulation in 2009, Public Law 111-83 (2009), eased the high burden for beneficiaries whose petitioners died prior to their adjustment of status application.  The new regulation does not require “humanitarian reinstatement” anymore.  Therefore, as long as there is a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible for adjustment of status even if the original petitioners are deceased.

Our client’s US citizen sister was willing to become a substitute sponsor for our client. On September 27, 2010, our office filed a request to join in a Motion to Terminate Proceedings with the family’s I-485 applications and supporting documents.  Thereafter, with the government’s agreement, the Immigration Judge terminated our client’s removal proceedings on September 28, 2010.  With the Judge’s Order, our office filed our client’s I-485 Adjustment of Status applications with the USCIS on October 7, 2010.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.

On January 3, 2011, our clients had their I-485 interview at the USCIS Cleveland Office.  Our lawyer accompanied our client and his family members for the interview. The Interview went smoothly, but our client could not get his green card right away due to a slight retrogression of priority dates.  Fortunately, in July 2011, his priority date became current, and the USCIS immediately approved his entire family’s Adjustment of Status application. After a 19 year wait from the time our client’s mother filed an I-130 petition, to a 9 year wait from the time his family entered the United States, finally, our client’s family all have their green cards.

FREE CONSULTATIONS

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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