Immigration & Green Card Law Firm, Lawyers, Attorneys: San Franscisco Bay Area to San Jose: Death of Petitioner: What is the effect?

Tuesday, December 18, 2007

Death of Petitioner: What is the effect?

Dear Readers,

The below case, although not a precedent decision - that is, the USCIS does not have to follow it in all jurisdictions (but probably will!), is still important.

The Court in its wisdom showed compassion on an immigrant beneficiary and also exhibited 'common sense', a rare commodity. The USCIS is not known for showing compassion or having common sense. Such behaviors must be imposed on them, like was done here.

The real point is that maybe the USCIS in the near future, via 'memo', from Michael Aytes or another memo-issuing 'head', will change it's policy to summarily deny such petitions and require lawyers like this one do our best to ask for "humanitarian consideration".

Well, we must wait and see...

Paul M. Heller, Esq. (Founder/Principal)

Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303

Massachusetts District Court Holds Widow Remains “Immediate Relative”
Cite as "AILA InfoNet Doc. No. 07121762 (posted Dec. 17, 2007)"

This case presents a question of first impression in the First Circuit -- does a properly filed "immediate relative" visa petition lapse upon the death of the immediate relative during the processing period? This case arises out of USCIS’ denial of an "immediate relative" visa petition upon an application for adjustment of status where the petitioner's husband died while the application was pending. The District Court of Massachusetts agreed with the Ninth Circuit’s interpretation of INA Sec. 201(b)(2)(A)(I) in Freeman v. Gonzales holding that an I-130 beneficiary remains an “immediate relative” after death of petitioning spouse and they remanded the case to the USCIS for further proceedings in accordance with their decision. Neang v. Chertoff (Mass. Dist. Ct. Dec. 12, 2007)

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