A Tricky Situation

[plunge3 0]

Good morning all.

I am the BF of a LPR from China. My GF was married to a US Citizen back in 2007. In 2008, she immigrated to US to live with her husband. She has 2 Children, both unmarried, one of which is a minor, under the age of 18. The children were planning to come later to the US, so they did not immigrate at that time. In 2009, her husband had a trajic fall which injured him severely and was not able to recover, he passed away. My GF did receive her LPR status before he passed. The Children were listed on the papers to immigrate, but did not accompany their mother at the time. The younger of the two children has been living with his grandmother ( my GF's mother ), however, her health is failing. My Gf's son now wants to come here. I would assume that the original sponsor has passed, that all the papers associated with the original paperwork are now void. I would also assume that my Gf would need to apply to bring the child here. If that is the case, does he go on the "lottery list", and chosen as a position opens for him to come? Thanks in advance for the input.

Kevin

[aaron2020 11,651]

There's no lottery list. There are different waiting lines for visas. Which line a person goes into depend on the petitioner's status (US citizen or LPR), the beneficiary's age and marital status, and the family relationship between them.

Paperwork filed by her deceased husband are done. The dead cannot petition for anyone; i.e. he can't sign any of the required paperwork that still needs to be filed.

As an LPR, she can filed for her in married children. It will take 2-3 years for the minor. It could take 7-8 years ifor the other child if he/she is close or older than 21.

[aleful 1,905]

Good morning all.

I am the BF of a LPR from China. My GF was married to a US Citizen back in 2007. In 2008, she immigrated to US to live with her husband. She has 2 Children, both unmarried, one of which is a minor, under the age of 18. The children were planning to come later to the US, so they did not immigrate at that time. In 2009, her husband had a trajic fall which injured him severely and was not able to recover, he passed away. My GF did receive her LPR status before he passed. The Children were listed on the papers to immigrate, but did not accompany their mother at the time. The younger of the two children has been living with his grandmother ( my GF's mother ), however, her health is failing. My Gf's son now wants to come here. I would assume that the original sponsor has passed, that all the papers associated with the original paperwork are now void. I would also assume that my Gf would need to apply to bring the child here. If that is the case, does he go on the "lottery list", and chosen as a position opens for him to come? Thanks in advance for the input.

Kevin

ditto, there is no lottery list, but there is a waiting list for LPR petitions. she can file an i130 for each of her unmarried children. for unmarried children under 21, the wait is over 2 years. the age is not 18, but 21. the waiting is longer if the unmarried children are over 21. for unmarried children over 21, the wait is over 8 years. If she becomes a USC, the wait for unmarried children over 21, would be over 7 years.

[JimVaPhuong 4,863]

Good morning all.

I am the BF of a LPR from China. My GF was married to a US Citizen back in 2007. In 2008, she immigrated to US to live with her husband. She has 2 Children, both unmarried, one of which is a minor, under the age of 18. The children were planning to come later to the US, so they did not immigrate at that time. In 2009, her husband had a trajic fall which injured him severely and was not able to recover, he passed away. My GF did receive her LPR status before he passed. The Children were listed on the papers to immigrate, but did not accompany their mother at the time. The younger of the two children has been living with his grandmother ( my GF's mother ), however, her health is failing. My Gf's son now wants to come here. I would assume that the original sponsor has passed, that all the papers associated with the original paperwork are now void. I would also assume that my Gf would need to apply to bring the child here. If that is the case, does he go on the "lottery list", and chosen as a position opens for him to come? Thanks in advance for the input.

Kevin

Did her deceased husband ever file any petitions for the kids? If so, were the petitions approved before her husband passed away? If the answer to both of these questions is "yes" then they have a decent shot at humanitarian reinstatement. I don't recommend she try to tackle that without the assistance of a good immigration lawyer. If successful, an approved humanitarian reinstatement would reinstate the previous petitions, and allow a substitute sponsor to sign the affidavit of support. Your girlfriend is an eligible relative to serve as substitute sponsor.

If she originally immigrated with a K1 or K3 visa, and was planning on the kids immigrating with derivative K2 or K4 visas, then that opportunity has passed. They would have had to get their visas within a year of her getting hers.

Otherwise, she needs to submit an I-130 for each of the kids. Others have already told you the approximate amount of time she'll have to wait before their priority dates become current, but the waiting doesn't start until she submits the petitions.

[Darnell 8,479]

'listed on the papers to immigrate' -

uhm - what papers, exactly?

please tell us form numbers.

Thanks !

[Sandra G. 5,074]

The USCIS memo (Aug 31,2009) defines for humanitarian reinstatement a qualifying child as "A qualifying child is the unmarried son or daughter of the surviving spouse, who is CURRENTLY residing in the United States".

It's very clear the children must be living in the United States to be eligible to request deferred action under this program.This program does not cover surviving spouses or qualifying children of deceased U.S. citizens who are residing outside the United States.

USCIS MEMO,Aug 31,2009

"...who is covered under this program are surviving spouses (and their qualifying children), whose U.S. citizen spouses died before the second anniversary of marriage, who have not remarried since the death of the spouse, and are currently residing in the United States. Such surviving spouses are covered without restrictions on how long the U.S. citizen spouse has been deceased as long as the surviving spouse has not remarried".

[JimVaPhuong 4,863]

The USCIS memo (Aug 31,2009) defines for humanitarian reinstatement a qualifying child as "A qualifying child is the unmarried son or daughter of the surviving spouse, who is CURRENTLY residing in the United States".

It's very clear the children must be living in the United States to be eligible to request deferred action under this program.This program does not cover surviving spouses or qualifying children of deceased U.S. citizens who are residing outside the United States.

USCIS MEMO,Aug 31,2009

"...who is covered under this program are surviving spouses (and their qualifying children), whose U.S. citizen spouses died before the second anniversary of marriage, who have not remarried since the death of the spouse, and are currently residing in the United States. Such surviving spouses are covered without restrictions on how long the U.S. citizen spouse has been deceased as long as the surviving spouse has not remarried".

The portion of the memo you quoted is not about humanitarian reinstatement. It's about surviving spouses being able to self-petition for adjustment of status by filing an I-360. No reinstatement is required in those cases because it's not necessary for the deceased spouse to have ever filed an I-130. If the deceased spouse had filed an I-130 then it would automatically convert to an I-360 on the spouses death.

Humanitarian reinstatement is about reinstating the approval of an I-130 petition for an alien who is living abroad. An I-130 must have been submitted and approved before the petitioner died. The beneficiary has to submit a request to USCIS asking that the petition be reinstated in order to satisfy a compelling humanitarian need. The most common reason is because the goal of family reunification can still be met if the alien is allowed to immigrate. A substitute sponsor is required.

Both surviving spouses and humanitarian reinstatement are part of the Family Sponsor Immigration Act of 2002, which is probably how you ended up finding that memo.