A mother’s death invalidates the green card applications that belong to her children living abroad. Click below for more information.
Q. My sister died before her children could get their immigrant visas. Can they nevertheless get their green cards? My sister was a U.S. citizen. She filed petitions for permanent residence for her son and daughter in 2001. The U.S. Citizenship and Immigration Services approved the petitions. However, before the U.S. consul called them for their immigrant visa interviews, my sister died.
Rajni, Jersey City, N.J.
A. To get their immigrant visas, your niece and nephew must apply to the USCIS for humanitarian reinstatement of their petitions. When a petitioner (your sister) for beneficiaries abroad your niece and nephew) dies, the petition becomes invalid. Readers should note that for the widow or widower of a U.S. citizen, or where the beneficiary is already in the United States, the USCIS need not have approved the petition — the beneficiary can get permanent residence without asking for reinstatement.
In cases where the beneficiary is abroad, the beneficiaries must prove that they deserve permanent residence for humanitarian reasons. In determining whether a beneficiary deserves reinstatement, USCIS will consider whether denying the beneficiary a visa will disrupt an established family unit; lead to hardship to U.S. citizens or lawful permanent residents; whether the beneficiary is elderly or in poor health; whether the beneficiary has spent a lengthy period of time in the United States, the conditions under which the beneficiary is living in his or her home country, whether undue government delay occurred in adjudicating the petition and the beneficiaries family ties in the United States.
Since your sister has died, your niece and nephew will need another relative to submit USCIS form I-864, Affidavit of Support, for them. The affidavit must come from a spouse, parent, mother-in-law, father-in-law, sibling, child ( at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian. The affidavit should be submitted with the request for reinstatement.
Q. I came to the United States using another person’s passport. Can I get permanent residence based on sponsorship from my U.S. citizen daughters. My two daughters were born here. Must I return home for my immigrant visa interview.
June Pitter, White Plains
A. If a U.S. citizen daughter at least age 21 petitions for you, you can interview here for permanent residence. But you may have a tough road. However, with a fighting spirit and a good representative, you have good chance of getting your green card without leaving the United States.
An immediate relative of a U.S. citizen who was “inspected and admitted†upon entry into the United States qualifies to interview here, the process called adjustment of status. The immediate relative category includes the spouse and unmarried child under 21 of a U.S. citizen, and the parent of a U.S. citizen who is at least age 21. The USCIS agrees that entry with a phony passport, or another person’s valid passport is an “inspection and admission.â€
If you can’t produce the passport you used to enter, USCIS will likely deny your adjustment of status application but you may have better luck with an immigration judge. The judge can consider both the adjustment application and the waiver. Immigration judges are more willing to believe an applicant’s claim that he or she was inspected and admitted.
When a person makes a fraudulent entry, as is the case when someone enters with another person’s passport, the USCIS will allow the applicant interview here, but require a fraud waiver. To get the waiver, you must prove that a U.S. citizens or permanent resident parent or spouse will suffer extreme hardship if you leave the United States.
Q. The police arrested me for marijuana possession. The judge granted me an adjournment in contemplation of dismissal. I never pleaded guilty and the judge ultimately dismissed the case. Will I qualify for the Obama deferred action program? Should I still get my certificate of disposition to show that to USCIS or will they already know about the ACD when they run the background check?
Julio, White Plains
A. USCIS doesn’t consider an ACD to be a conviction. If you meet the qualifications for the Obama program, you should get deferred action status. While the USCIS will likely learn of your conviction during the agency check required of all Obama program applicants, you should get a certificate of disposition to confirm the ACD.
When a disposition of a criminal case does not require a finding of guilt or a plea of nolo contendere (no contest), it is not a conviction under U.S. immigration law. It was fortunate that you got an ACD. The Obama program bars individuals who convicted of a a “significant misdemeanor.†Included are crimes involving drugs even if that crime is a misdemeanor. It also includes any crime involving larceny. I mention that since it was not clear in last weeks column that a minor larceny crime might bar approval under the Obama program.
Allan Wernick is an attorney and director of the City University of New York’s Citizenship Now! project. Send questions and comments to Allan Wernick, New York Daily News, 4 New York Plaza, N.Y., 10004 or email to [email protected]. Follow him on Twitter @awernick.
