Overview of Immigration Benefits After Death of Qualifying Relative Under Section INA 204(l)

USCIS issued a policy memo December 16, 2010 in regards to the approval of petitions and applications after the death of the qualifying relative under new section 204(l) of the immigration and nationality act. This post summarizes the requirements and policies detailed in the memo.

Background

For many years, USCIS had taken the position that the law did not permit the beneficiary of a visa petition to obtain approval of the petition if the petitioner died while the petition remained pending.

New section 204(l) of the Act changes this governing law with respect to an alien who is seeking an immigration benefit through a deceased “qualifying relative.” Section 204(l) permits the approval of a visa petition or refugee/asylee relative petition, as well as any adjustment application and related application, if the alien seeking the benefit:

  • Resided in the United States when the qualifying relative died;
  • Continues to reside in the United States on the date of the decision on the pending 
petition or application; and
  • Is at least one of the following:
  • The beneficiary of a pending or approved immediate relative visa petition;
  • The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries;
  • Any derivative beneficiary of a pending or approved employment-based visa petition;
  • The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative 
Petition;
  • An alien admitted as a derivative “T” or “U” nonimmigrant; or
  • A derivative asylee under section 208(b)(3) of the Act.

Section 568(d) of Public Law 111-83 does not expressly define the “qualifying relative.” From the list of aliens to whom the new section 204(l) applies, however, USCIS infers that “qualifying relative” means an individual who, immediately before death, was:

  • The petitioner in a family-based immigrant visa petition under section 201(b)(2)(A)(i) or 203(a) of the Act;
  • The principal beneficiary in a family-based visa petition case under section 201(b)(2)(A)(i) or 203(a) of the Act;
  • The principal beneficiary in an employment-based visa petition case under section 203(b) of the Act;
  • The petitioner in a refugee/asylee relative petition under section 207 or 208 of the Act;
  • The principal alien admitted as a T or U nonimmigrant; or
  • The principal asylee, who was granted asylum under 208 of the Act

New Affidavit Of Support Requirement

INA section 212(a)(4)(C) provides that, to avoid public charge inadmissibility, most immediate relatives and family-based immigrants, and some employment-based immigrants, must have filed an affidavit of support on their behalf that meets the requirements of INA section 213A. If, after the death of a qualifying relative, a visa petition is approved or not revoked under new INA section 204(l), then another individual who qualifies as a “substitute sponsor” must submit a Form I-864, Affidavit of Support under section 213A of the Act. If the alien is not required under sections 212(a)(4)(C) and 213A of the Act and 8 C.F.R. § 213a.2(a)(2)(ii) to have a legally binding affidavit of support, then there is no need for a substitute sponsor to submit a Form I-864.

Who Is A Qualifying Relative?

The new section 204(l) does not expressly define the “qualifying relative.” From the list of aliens to whom new section 204(l) applies, USCIS infers that “qualifying relative” means an individual who, immediately before death was:

  • The petitioner in an immediate relative or family-based immigrant visa petition under section 201(b)(2)(A)(i) or 203(a) of the Act;
  • The principal beneficiary in a widow(er)’s immediate relative or a family-based visa petition case under section 201(b)(2)(A)(i) or 203(a) of the Act;
  • The principal beneficiary in an employment-based visa petition case under section 203(b) of the Act;
  • The petitioner in a refugee/asylee relative petition under section 207 or 208 of the Act;
    • The principal alien admitted as a T or U nonimmigrant;
    • The principal asylee, who was granted asylum under 208 of the Act.

Benefits Apply in Cases Adjudicated before October 28, 2009

Section 204(l) applies to a petition or application adjudicated on or after October 28, 2009, even if the qualifying relative died before October 28, 2009. If a petition or application was denied on or after October 28, 2009, without considering the effect of section 204(l), and section 204(l) could have permitted approval, USCIS must, on its own motion, reopen the case for a new decision in light of section 204(l).

U.S Residence Requirement for Surviving Relative                   

Section 101(a)(33) of the Act governs the determination whether an alien “resided” in the United States when the qualifying relative died, and whether the alien continues to reside in the United States. A person’s “residence” is his or her “principal, actual dwelling place in fact, without regard to intent.” If the alien’s “residence” was in the United States at the required times, the alien “resided” here. The statute does not bar an alien who was actually abroad when the qualifying alien died from proving that the alien still resides in the United States. Also, section 204(l) of the Act does not require the alien to show that he or she was, or is, residing here lawfully. Execution of a removal order, however, terminates an alien’s residence in the United States.

Sections 203(d), 207(c)(2)(A), and 208(b)(3)(A) permit the spouse or child of a principal alien to accompany or follow to join a principal alien. If any one beneficiary of a covered petition meets the residence requirements of section 204(l) of the Act, then the petition may be approved, despite the death of the qualifying relative, and all the beneficiaries may immigrate to the same extent that would have been permitted if the qualifying relative had not died. But it is not necessary for each beneficiary to meet the residence requirements in order to have the benefit of section 204(l).

Implementation

The Adjudicator’s Field Manual (AFM) is amended as follows:

Approval of pending immigrant visa petitions, T or U extension applications, asylee/ refugee relative petitions, or applications after death of the qualifying relative.

Widow(er)s of citizens: Upon the death of the citizen petitioner, Form I-130 is converted to a widow(er)’s Form I-360. This conversion takes place even if the citizen and alien were married for less than two years when the citizen died. A widow(er)’s eligibility for adjustment ends if the widow(er) remarries before obtaining LPR status.

In the case of a K-1 nonimmigrant, who marries the petitioner within 90 days of admission, the K-1 nonimmigrant (and any K-2 children, who are otherwise eligible), may obtain adjustment of status without the need for Form I-360, just as they would have been eligible for adjustment without Form I-130, if the petitioner had not died.

If an alien was admitted as a K-3 or K-4 nonimmigrant, the Form I-130 filed for the K-3 is converted to a Form I-360 upon the citizen petitioner’s death. The K-4 can then “accompany or follow to join” the K-3 based on that Form I-360.

A USCIS officer may encounter a case in which a petition or application was approved before October 28, 2009, despite the death of the citizen spouse, who filed the petition. The approval may have occurred because USCIS was unaware of the death, or because the alien persuaded USCIS that the death did not end eligibility. In some circuits, but not all, there were precedents from the relevant courts of appeals supporting approval of an immediate relative spousal Form I-130 after the petitioner’s death. In light of those precedents, and given the intent of the Public Law, USCIS will deem the approval of the petition and the grant of adjustment proper, and will not seek to rescind a grant of adjustment, if the sole basis for doing so is the death of the citizen spouse and the resulting invalidity of the Form I-864 filed by the citizen spouse.

Waiver

The text of new section 204(l) provides that the new approval authority applies not only to the visa petition, but to an adjustment application and “any related applications.” Section 568(d)(2) of the FY2010 DHS Appropriations Act specifies that section 568(d)(1) does not waive grounds of inadmissibility. But the provision does remove “ineligibility based solely on the lack of a qualifying family relationship” as a basis for denying relief. USCIS has determined, therefore, that section 204(l) does give USCIS the discretion to grant a waiver or other form of relief from inadmissibility to an alien described in section 204(l), even if the qualifying relationship that would have supported the waiver has ended through death.

Note that it is not necessary for the waiver or other relief application to have been pending when the qualifying relative died. Section 204(l) of the Act permits the approval of a waiver or other relief application despite the death of a qualifying relative if:

  • A petition or application specified in paragraph (c)(1) of this chapter was pending or approved when the qualifying relative died;
  • The alien was residing in the United States when the qualifying relative died; and
  • The alien still resides in the United States.

If a pending petition or application to which section 204(l) applies is denied, despite section 204(l) of the Act, then the alien may not obtain approval of a waiver or other relief under section 204(l).

Alternate Relief

Those cases that do not fall under the application of the surviving benefits law may still be approved as the USCIS. An officer also has authority, now, to approve an adjustment of status application that was pending when the qualifying relative died, if the related visa petition is approved under section 204(l), or if a pre-death approval is reinstated. In the adjustment of status context, the alien must have been eligible to apply for adjustment of status at the time that application was filed.

Such cases, however, do not include employment-based petitions and situations in which the petition’s approval was revoked upon the death of the principal beneficiary in either family-based or employment-based cases.

Source: USCIS