Waiver Still Possible After Death of a Parent

By Attorneys Robert L. Reeves & Nancy E. Miller

An adult  beneficiary of a petition filed by a United States citizen or lawful permanent resident parent has to wait many years for his petition to become current.  However, it is difficult to place a life on hold for a decade or more.  If the adult child marries, he may lose his ability to immigrate because there is no category for married sons and daughters of lawful permanent residents.  At the very least, he will have added years to his wait because the category of married sons and daughters of United States citizens is much further backlogged than that of unmarried sons or daughters of citizens. It is understandable that the adult child may choose to marry and have children during the time that the priority date is pending.   Years later, when informed that the petition is current, some find it impossible to give up the American dream.  An alien in that position sometimes lies to the U.S. Consulate about marital status and gets a green card as the single son or daughter of a permanent resident.

Once in possession of a green card and residing in the U.S., the actions he takes to reunite his family often make a bad situation worse.  Remarriage to the same spouse or misrepresenting marital status on the Naturalization application can result in the immigrant being placed in removal proceedings in Immigration Court. 
 Immigration and Nationality Act Section 237(a)(1)(H) allows an alien who lied  in obtaining a green card apply for a waiver.  The waiver is available to an immigrant who is  the spouse, parent, son or daughter of a citizen  or a legal permanent resident of the United States . In the majority of cases, the spouse and children of the alien who committed the fraud are natives and citizens of the home country, rendering them ineligible to act as qualifying relatives.  The only qualifying relative may be the parent who originally petitioned the immigrant. However, many years may have passed between the time that the green card is granted and the time that the alien is placed into court proceedings.  By that time, the qualifying relative parent may have passed away.  The question that arises at that point is whether the alien is still eligible for that waiver.

In Federiso v. Holder, a case decided on May 19, 2010, the 9th Circuit Court of Appeals held that “an individual whose mother is a United States citizen continues to be  the son … of a citizen of the United States as set forth at [INA Section 237(a)(1)(H)] after his mother’s death.”

The Federiso Court  addressed the continued existence of a family relationship with a United States citizen parent.  It held that the family relationship and the U.S. citizenship continued beyond the death of the parent. The plain language of this statute and others support this finding.  However, the court did not discuss the continued existence of a relationship with a lawful permanent resident parent.  When that issue comes before the court, one factor will have to be whether lawful permanent residence status continues beyond the death of the parent.
Eligibility for the waiver requires more than the existence of a qualifying relative.  Once the relationship is proven, the court must engage in a balancing test to determine whether the positive factors in the case outweigh the negative ones. Those factors will be discussed in depth in a separate article.    

Non-citizen sons and daughters of LPRs applying for the waiver will need to show why the Federiso holding should be extended to them. Non-citizen sons and daughters of both USCs and LPRs will need to show why the court should favorable exercise discretion in weighing the positive and negative factors.  Because so much is at stake, aliens in this situation should seek the advise and assistance of an immigration attorney who is experienced in this type of case.