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Greg Siskind on Immigration Law and Policy


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I was notified of a post on Immigration Voice today that warranted further comment and a specific request was made by an IV leader that I address the situation in my blog. So here goes. The post was from Mehul and reads as follows:

I have a unique position. couple of weeks back I was told that have
fatal cancer and won't live pass 4-6 months. After recovering from
initial shock I am wondering if my wife will be able to continue her
american dream or she will have to head home after me.

I have filed 485 with approved 140 back in june, 2007 with PD of March, 2003

Please help.


First, I am deeply sorry to hear this news and will try and be helpful by providing you realistic information on your prospects and make some practical suggestions. Unfortunately, a few years ago a client and a friend passed away during the I-140 stage of processing and his widow was left with no realistic option but to return to her home country. So I know it is important to address the situation quickly.

Immigration law, unfortunately, requires the termination of a derivative petition for a spouse in an employment-based green card case in the event of the death of the principal applicant. An exception was made for widows and widowers of the 9/11 terror attacks.  But the Skerritt INS letter of July 17, 1995 specifically noted that an employment-based immigration petition is automatically revoked upon the death of the petitioner or beneficiary. And I have no reason to believe a new position has been taken.

There's another problem and that is the retrogression of priority dates. I'm presuming you are Indian and if this is so, both the EB-2 and EB-3 categories are backlogged to considerably earlier than March 2003. If I'm wrong in my presumption, please let me know. The EB-2 category is only up to January 2002 and the EB-3 category is stuck at May 2001.

The only available solutions I see are to explore independent visa options for your wife. Obviously, you can look at non-immigrant and immigrant visa options and I don't have enough information to advise on that.  Another category you might look at is the EB-5 investor visa . For a $500,000 investment in a qualified regional center, an green card can be obtained. Obviously, this is a lot of money, but if you have the means, it might be worth a look.

There have been attempts over the last few months to get legislation passed that would solve this problem. Senator Nelson (D-FL) introduced a bill that would have permitted the completion of green card applications for widows waiting on employment-based adjustments. Unfortunately, like many immigration bills this session, there is little good news to report. But you can read more at this web site.

Finally, there is always the private bill route. It's a long shot, but if you can garner support in Congress, this may be an option. And merely filing a private bill can potentially lead to the halting of any deportation proceedings during the two or three years these bills sometimes take to eventually pass. I am going to contact someone I know who is in an important position in Congress to see what he thinks.

For others reading this post, please remember that rules vary from one type of case to another. For example, there are different rules for family-based cases. So please make sure you consult your immigration lawyer before assuming anything from this discussion.


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  1. 's Avatar
    To provide some more context here's another post from Mehul.

    "I am from Fiji but I was born in India so I am stuck with rest of you and for my family going back is not an option. Fiji is very hostile to indians living there so for us it's here or nowhere. May be india is an option but we have very few distant relatives in India as both of our parents has passed away."

  2. Greg Siskind's Avatar
    As I presumed. Thanks.
  3. Dream Act guy's Avatar
    I'm really sorry, Mehul.

    You could write your to your House representative. Like Greg said, maybe he or she can help you with a private bill if you write a hand-written letter or an email to him or her explaining your situation and asking for help.
  4. Deb's Avatar
    First of all, I am extremely sorry to read this story. I would like to say that be positive. Next, is your wife born in India too? I know that cross chargeability applies when your spouse is born in a different country. If she is born in Fiji, maybe you can use this route? Greg can comment more on this. Please call and write to your local comgressman and both state senators. Don't lose hope, miracles do happen. My prayers are with you and your family.
  5. Legal and waiting's Avatar
    Sorry about your situation. I have heard that a two-year unrestricted work visa to the UK only takes 2 months to get, and there is no company sponsorship needed. I do not know if the spouse gets a work permit in that case, but I would hope so (I don't think they are so stupid as to fall into H4 nonsense). At the very least, your spouse should be able to find a job and start some immigration process from there. Again, very sorry to hear about your illness.
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