II 111th CONGRESS 1st Session S. 1247 IN THE SENATE OF THE UNITED STATES June 11, 2009 Mr. Menendez (for himself, Mrs. Gillibrand, and Mr. Leahy) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend the Immigration and Nationality Act to promote family unity, and for other purposes.

1.

Short title

This Act may be cited as the Orphans, Widows, and Widowers Protection Act.

2.

Relief for orphans and spouses of United States citizens and residents

(a)

Amendment

Section 201(b)(2)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(2)(A)(i)) is amended— (1)by inserting or, if married to such citizen for less than 2 years at the time of the citizen’s death, an alien who proves by a preponderance of the evidence that the marriage was entered into in good faith and not solely for the purpose of obtaining an immigration benefit after for at least 2 years at the time of the citizen’s death; and (2)by adding at the end the following: For purposes of this subsection, an alien who was the child or parent of a citizen of the United States on the date of the citizen’s death shall be considered to remain an immediate relative after such date if the alien parent files a petition under section 204(a)(1)(A)(ii) not later than 2 years after such date or the alien child files such a petition before reaching 21 years of age.. (b)

Special rule for orphans and spouses

In applying section 201(b)(2)(A)(i) of the Immigration and Nationality Act, as amended by subsection (a), to an alien whose citizen or lawful permanent resident relative died before the date of the enactment of this Act, the alien relative may file the classification petition under section 204(a)(1)(A)(ii) of such Act not later than 2 years after the date of the enactment of this Act. (c)

Eligibility for parole

If an alien was excluded, deported, removed, or departed voluntarily before the date of the enactment of this Act based solely upon the alien’s lack of classification as an immediate relative (as defined in section 201(b)(2)(A)(i) of the Immigration and Nationality Act) due to the death of the alien’s citizen relative— (1)such alien shall be eligible for parole into the United States pursuant to the Attorney General’s discretionary authority under section 212(d)(5) of such Act (8 U.S.C. 1182(d)(5)); and (2)such alien’s application for adjustment of status shall be considered notwithstanding section 212(a)(9) of such Act (8 U.S.C. 1182(a)(9)).

3.

Adjustment of status

(a)

Surviving spouses, parents, and children

Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) is amended by adding at the end the following: (n)

Application for adjustment of status by surviving spouses, parents, and children

(1)

In general

An alien described in paragraph (2) who applies for adjustment of status before the death of the qualifying relative may have such application adjudicated as if such death had not occurred. (2)

Alien described

An alien described in this paragraph is an alien who— (A)is an immediate relative (as described in section 201(b)(2)(A)); (B)is a family-sponsored immigrant (as described in subsection (a) or (d) of section 203); or (C)is a derivative beneficiary of an employment-based immigrant under section 203(b) (as described in section 203(d)). . (b)

Refugees

Section 209(b) of the Immigration and Nationality Act (8 U.S.C. 1259(b)) is amended by adding at the end the following An alien who is the spouse or child of a refugee (as described in section 207(c)(2)) or an asylee (as described in section 208(b)(3) who applies for adjustment of status before the death of a qualifying relative may have such application adjudicated as if such death had not occurred..

4.

Transition period

(a)

In general

Notwithstanding a denial of an application for adjustment of status for an alien whose qualifying relative died before the date of the enactment of this Act, such application may be renewed by the alien through a motion to reopen, without fee, if such motion is filed not later than 2 years after such date of enactment. (b)

Eligibility for parole

If an alien described in section 245(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1255(n)(2)) was excluded, deported, removed, or departed voluntarily before the date of the enactment of this Act— (1)such alien shall be eligible for parole into the United States pursuant to the Attorney General’s discretionary authority under section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)); and (2)such alien’s application for adjustment of status shall be considered notwithstanding section 212(a)(9) of such Act (8 U.S.C. 1182(a)(9)).

5.

Processing of immigrant visas and derivative petitions

(a)

In general

Section 204(b) of the Immigration and Nationality Act (8 U.S.C. 1154(b)) is amended— (1)by striking After an investigation and inserting the following: (1)

In general

After an investigation ; and (2)by adding at the end the following: (2)

Death of qualifying relative

(A)

In general

Any alien described in subparagraph (B) whose qualifying relative died before the completion of immigrant visa processing may have an immigrant visa application adjudicated as if such death had not occurred. An immigrant visa issued before the death of the qualifying relative shall remain valid after such death. (B)

Alien described

An alien described in this subparagraph is an alien who is— (i)an immediate relative (as described in section 201(b)(2)(A)); (ii)a family-sponsored immigrant (as described in subsection (a) or (d) of section 203); (iii)a derivative beneficiary of an employment-based immigrant under section 203(b) (as described in section 203(d)); or (iv)the spouse or child of a refugee (as described in section 207(c)(2)) or an asylee (as described in section 208(b)(3)). . (b)

Transition period

(1)

In general

Notwithstanding a denial or revocation of an application for an immigrant visa for an alien whose qualifying relative died before the date of the enactment of this Act, such application may be renewed by the alien through a motion to reopen, without fee, if such motion is filed not later than 2 years after such date of enactment. (2)

Inapplicability of bars to entry

Notwithstanding section 212(a)(9) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)), an alien’s application for an immigrant visa shall be considered if the alien was excluded, deported, removed, or departed voluntarily before the date of the enactment of this Act.

6.

Naturalization

Section 319(a) of the Immigration and Nationality Act (8 U.S.C. 1430(a)) is amended by inserting (or, if the spouse is deceased, the spouse was a citizen of the United States) after citizen of the United States.

7.

Effective date

The amendments made by this Act shall apply to all petitions or applications described in such amendments that— (1)are pending as of the date of the enactment of this Act; or (2)have been denied, but would have been approved if such amendments had been in effect at the time of adjudication of the petition or application.