GC Question, husband passed away

S

ssk1974

Registered Users (C)
Hi All,

My friend passed away early this week. His wife is on EAD and the husband was also on EAD when he passed away. The questions are as follows.

1. Will the green card processing continue?
2. If it does not continue, how much time she has to leave the country?
3. the 401K, does she have to pay fine etc., to withdraw the money.

Thanks for your time and help.
 
What was the basis of their adjustment of status? Employment? A relative filed for them? Something else? Was the husband the primary and the wife the derivative, or vice versa?

Those facts are important for determining her eligibility to continue the AOS process.
 
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Thanks for your time jackolantern.

What was the basis of their adjustment of status? - Yes Employment.

Was the husband the primary and the wife the derivative, or vice versa? Husband was primary, and the wife has never worked in the US, though she had her EAD and still is on EAD.
 
It looks like she is eligible to continue the green card process, based on a law that was passed in 2009 to enable beneficiaries to continue if they were already living in the US at the time of death of the petitioner or primary beneficiary.

See http://www.uscis.gov/USCIS/Laws/Memoranda/2011/January/Death-of-Qualifying-Relative.pdf

Section 204(l) permits the approval of a visa petition or refugee/asylee relative petition, as well as any adjustment
application and related application, if the alien seeking the benefit:

* Resided in the United States when the qualifying relative died;
* Continues to reside in the United States on the date of the decision on the pending petition or application; and
Is at least one of the following:
- The beneficiary of a pending or approved immediate relative visa petition;
- The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries;
- Any derivative beneficiary of a pending or approved employment-based visa petition;
- The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative Petition;
- An alien admitted as a derivative “T” or “U” nonimmigrant; or
- A derivative asylee under section 208(b)(3) of the Act.
Click to expand...
 
seems just for employment based categories

Jackolantern said:
It looks like she is eligible to continue the green card process, based on a law that was passed in 2009 to enable beneficiaries to continue if they were already living in the US at the time of death of the petitioner or primary beneficiary.

See http://www.uscis.gov/USCIS/Laws/Memoranda/2011/January/Death-of-Qualifying-Relative.pdf
Click to expand...

Jack,
It seems that this is only applicable if the deceased is a employment based pending I-485 and derivative is leaving in US. That means, this is not applicable for family based pending I-130 applications..
 
sarwarmd said:
Jack,
It seems that this is only applicable if the deceased is a employment based pending I-485 and derivative is leaving in US. That means, this is not applicable for family based pending I-130 applications..
Click to expand...

Reread post #3, you'll see this is employment-based and the derivative beneficiary has EAD, presumably from living in the US with a pending I-485.

Also, the part I quoted included family-based cases.
* Resided in the United States when the qualifying relative died;
* Continues to reside in the United States on the date of the decision on the pending petition or application; and
Is at least one of the following:
- The beneficiary of a pending or approved immediate relative visa petition;
- The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries;
- Any derivative beneficiary of a pending or approved employment-based visa petition;
Click to expand...
 
Yes, it was employment based. Couple more questions

Jackolantern said:
Reread post #3, you'll see this is employment-based and the derivative beneficiary has EAD, presumably from living in the US with a pending I-485.

Also, the part I quoted included family-based cases.
Click to expand...

Yes, my friend who passed away was employed in the U.S and the GC was employment based.

I have few more questions, I am not sure if this is the right forum, but please help if you know answers.

1) Is the wife eligible for his Social security benefits, though not a U.S citizen?
2) They have small kids who are U.S citizens, are they eligible for Social security benefits?
3) how soon should she file for the relative petition?

Thank you.
 
ssk1974 said:
1) Is the wife eligible for his Social security benefits, though not a U.S citizen?
2) They have small kids who are U.S citizens, are they eligible for Social security benefits?
Click to expand...
Eligibility for Social Security benefits for the widow and children depends on various rules (but I'm almost sure that being a US citizen is not a requirement if the survivors are living in the US legally). She needs to find his Social Security documentation (particularly the annual statements) and do some research (including the SSA web site) and/or consult with an expert and visit an SSA office to find out what she and the children are eligible for (if anything).

3) how soon should she file for the relative petition?
Click to expand...

I don't think she needs to file anything unless USCIS inquires about the case. She already filed for AOS, and the 2009 law maintains her eligibility after the death of the primary.

However, I figure it would be sensible to notify USCIS of the death (including sending a copy of the death certificate) and also assert her right to continue AOS due to the 2009 law. That would let USCIS know that she is now the primary contact person for the case, and it would also enable them to grant a green card to somebody else (remember there is a limited quota, so if they give the GC to her deceased husband it means somebody else doesn't get a GC).
 
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