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.

 

Copyright © 2003 - 2005 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.