Q & A March 13, 2005
Q & A 1. 2.
Q&A 1.
If the U.S. citizen spouse has passed away prior to the second
anniversary of the marriage, the U.S.C.I.S. will not approve permanent
residence for the alien spouse based upon the marriage
Li reader asks:
My cousin came to US in early 2001. She married an US citizen in
6/2003 and immediately applied for her son. In 10/2003, my cousin
received approval letters for her I130, I-485 and I-765 applications.
Her son’s I-130 was approved in 12/2003 and in 3/2004 received
the second approval letter from immigration.
My cousin’s interview date was scheduled in 6/04, however,
due to the husband’s illness the interview was rescheduled
for 8/04. My cousin’s husband passed away suddenly in July.
My cousin did not pass the August interview due to the marriage
was less than 2 years.
My questions are:
1. How could my cousin continue applying for her green card or any
other method could she applying?
2. Her son is turning 18 years old this year. What can she do to
ensure her son coming to US as soon as possible?
Mr. Lee answers:
1 If the U.S. citizen spouse has passed away prior to the second
anniversary of the marriage, the U.S.C.I.S. will not approve permanent
residence for the alien spouse based upon the marriage. You state
that your cousin received approval letters for her I 130, I-485
and I-765 applications. If she applied under a concurrent filing
of the I-130 and I-485 applications, however, her I-130 petition
would not be adjudicated until the time of her interview in August
2004 - after the death of her husband in July. If the I-130 petition
was actually approved prior to the husband's death, there is the
possibility of continuing the case if the U.S.C.I.S. agrees to reinstate
the approval for humanitarian reasons pursuant to the Family Sponsor
Immigration Act of 2002. Of course, the U.S.C.I.S. may say that
the reinstatement provision was not meant to override prior law
that the widow or widower of a U.S. citizen is only allowed to file
for himself/herself upon the spouse's death if the citizen spouse's
death occurred at least two years after the date of marriage. In
the event that your cousin decides to request such reinstatement,
she would have to have the appropriate close family member who could
substitute for the ex-husband's required affidavit of support. These
could be U.S. citizen or permanent resident parents, mother-in-law,
father-in-law, sibling, child (if a least 18 years of age), son,
daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law,
grandparents or grandchild.
You have not disclosed how your cousin entered the U.S., or her
present visa status. I assume that she entered the U.S. legally
or attained eligibility to adjust status to permanent residence
under section 245(i), which allows most classes of individuals to
adjust status upon payment of a fine amount to the U.S.C.I.S. so
long as they filed labor certification or immigrant visa petitions
by April 30, 2001 and were physically present in the U.S. on December
21, 2000 . If she entered legally and is now overstayed but not
qualified under section 245 (i), your cousin could adjust status
if she meets and marries another U.S. citizen who is willing to
sponsor her for permanent residence. If she is qualified under section
245(i), she could conceivably adjust status through an employment
based case if her skills are needed by a U.S. employer that is willing
to sponsor her.
2 As the ex-husband was the petitioner of your cousin's son, that
I 130 petition is also automatically revoked and no longer valid
for his immigration. Inasmuch as the petition for the son was clearly
approved prior to the death of the stepfather, there is a possibility
of petition reinstatement for humanitarian reasons as described
above. If this is not possible, the son could still be petitioned
as a stepchild if your cousin meets and marries another U.S. citizen
or permanent resident prior to the son's turning the age of 18.
Of course, marrying a U.S. citizen would bring her son over faster.
Q&A 2.
To request an exemption from testing by designating the cause
on the N-400 naturalization application by checking off part 2,
category D
Your loyal reader asks:
My wife is qualified to exempt from taking the English test when
becoming US citizen. Please let me know how to request the exemption
when she files her naturalization application.
Mr. Lee answers:
Your wife can request an exemption from testing by designating
the cause on the N-400 naturalization application by checking off
part 2, category D and explaining the basis of her exemption, eg-"I
am 55 years of age and have held the green card for 15 years";
"I am 50 years of age and have held the green card for 20 years."
Another way of doing it is to include a letter with the application.
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