Family Based Petitions



Family-based category petitions are comparably simple and straightforward. However, in certain situations the petitions can be complicated and difficult. Such as the death of the petitioner, age-out problem, divorce from the petitioner, and so on.


Death of the petitioner


Death of the petitioner automatically revoke the I-130 petition, but there is possible relief for widows/widowers of USCs who have not re-married and who file a form I-360, petition for Ameerasian, Widow(er), or Special Immigration, within two years of the citizen’s death.


As for other surviving family members, they may continue to receive immigration benefits from a pending or approved I-130 after the petitioner has died as long as they meet certain requirement by the law. The beneficiary must have been residing in the United States at the time of the petitioner’s death and continue to be residing here. Those beneficiaries include immediate-relative children and parents of a USC, and all preference-category principal and derivative beneficiaries in the family-based category. The law also benefits derivative family members when the principal beneficiary has died.




The Child Status Protection Act (CSPA), which went into effect on August 6, 2002 helps many children of USCs immigrate faster than they would have under the prior law. It also provides certain form of relief for the unmarried children of LPRs and derivatives in the preference categories.


The children of USCs are now allowed to preserve the status they held at the time their parent filed the I-130 petition. It means that they will never age out if the petition was filed before they turn 21.


The CSPA provides a different form of relief to children of LPR parents. Under CSPA, the beneficiaries’ age for purposes of determining their preference category and derivative status will be reduced by the period of time the I-130 petition was pending. If he still retain his preference category after the calculation, such children need to seek to acquire lawful permanent resident status within one year of visa availability.


Waiver of joint petition– I-751 filing


Unless conditional resident aliens take certain steps to remove the condition, they lose their lawful status. Normally, a joint petition should be filed within 90 days before the second anniversary of the date on which the alien obtained GC. However, if the petitioning spouse deceased or divorced the beneficiary, what next? Or the petitioning spouse refuses to join the beneficiary to file the petition?


In lieu of the couple’s completing the joint petition, the conditional resident can request that this joint filing requirement be waived, based on any of four grounds:


(1) The marriage was entered into in good faith, but the spouse has died;

(2) The marriage was entered into in good faith, but the marriage has been terminated by divorce or annulment;

(3) The marriage was entered into in good faith, but the conditional resident has been battered or subjected to extreme cruelty by the citizen spouse; or

(4) Termination of permanent residency and deportation would result in extreme hardship.


Different requirements were set for submitting the waiver quest under the four categories. Based on the choice you need to prepare evidential documentation accordingly.

Print | Sitemap
© The Jin Law Office, P.C.