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November 2006
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Still a chance despite death of petitioner

By Allan Wernick
Syndicated Columnist

www.allanwernick.com
allanwernick@earthlink.net

Q. The CIS approved the petition my father filed for me in March 1999. He died in November 2005. Can I still get permanent residence? I am 29 years old and unmarried. -- Natalie Bennett, Montclair, N.J.

A. You might be able to get your residence based on your father's petition, despite his death. When a petitioner (here, your father) dies, the petition is automatically revoked. The CIS will reinstate the petition if the agency had approved the petition before the petitioner's death AND if the beneficiary of the petition (that's you) deserves permanent residence for humanitarian reasons. In deciding whether to reinstate the petition, the CIS will consider hardship to your family members who are U.S. citizens or lawful permanent residents, your age and health, and your ties to the United States. Write to the address on the last communication you received from the CIS asking for the petition to be reinstated. Include a detailed statement about what hardship you and your family members will suffer if you don't get your green card. Include statements from any affected relatives as well.

If the CIS reinstates the petition, you can apply for permanent residence once you qualify under the visa-quota system. At that time, you'll need to also submit an affidavit of support for you from another relative who is a U.S.-citizen or permanent-resident spouse, parent, mother-in-law, father-in-law, sibling, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law or grandparent.

Though this doesn't apply in your case, applicants applying based on a petition by a deceased petitioner can also use an affidavit from a grandchild or legal guardian.

GREEN-CARD APPLICATION RISKY FOR THIS UNDOCUMENTED IMMIGRANT

Q. My boyfriend is an undocumented immigrant from Mexico who came here illegally about six years ago. When we get married, can he get permanent residence? -- Lisa, San Francisco

A. Once you marry, your husband will need to apply for his immigrant visa at a U.S. consulate in Mexico. Because he has been in the United States unlawfully, he'll need a waiver of the 10-year bar to residence for individuals unlawfully present in the United States for 365 days or longer. To get the waiver, he must prove that YOU will suffer "extreme hardship" if he doesn't get his visa.

Currently, it's taking six to nine months to get a decision on this type of waiver. And your husband can't apply until he has his interview at the consulate. That means that he must spend those six to nine months abroad. And, if the CIS denies his application, he'll be stuck abroad for 10 years. I suggest that your husband-to-be see an immigration-law expert before you petition for him.

NO REFUND ON CIS FILING FEES

Q.
All of us in my family of five applied to renew our green cards. Now we are thinking of applying to become U.S. citizens. If we file naturalization applications, can we get our money back on the green-card renewals? We are Canadian citizens. After we filed to extend our permanent-residence cards, we decided we all want to become U.S. citizens. These filing fees add up quickly. -- Debbie Fairholm, Coral Springs, Fla.

A. Sorry, the United States Citizenship and Immigration Services won't refund your green-card-renewal filing fees. Still, your letter raises an important point. With the biometric (fingerprinting) fees -- required of applicants age 14-79 -- the total cost to renew your permanent-resident card is $260. For $400, just $140 more, you can naturalize and never have to renew your permanent-resident card again.