USCIS Issues Final Policy Memo Regarding Rights Of Immigrants Following Death Of Qualifying Relatives
by Immigration Law Associates, P.C.
On October 28, 2009, President Obama signed a new law significantly expanding the rights of foreign nationals to obtain permanent residence despite the death of the petitioner or principal beneficiary. The law, contained in §§ 204(l) and 213A(f)(5) of the Immigration and Naturalization Act, focuses on two particular rights: 1) the right of spouses and children of U.S. citizens to self-petition following the death of the petitioner; and 2) the rights of certain beneficiaries in family-based, employment-based and other immigration contexts following the death of the petitioner or the principal beneficiary. To ensure that the new law is uniformly applied, on December 16, 2010, USCIS issued a final policy memorandum clarifying when an approval of petitions and applications following the death of the petitioner or principal beneficiary is warranted.
For many years, it has been the position of USCIS that beneficiaries of visa petitions could not obtain approval of the petition if the petitioner died while the petition remained pending. Furthermore, the law required an automatic revocation of any approved petition if the petitioner died prior to approval of the beneficiary’s permanent residence. Regarding spouses of U.S. citizens, they were able to self-petition only if they were married for more than 2 years at the time of the U.S. citizen spouse’s death. Such harsh laws caused surviving beneficiaries to lose their only way of obtaining permanent residence in the U.S., often after many years of waiting for their priority dates to become current.
New Law and Policy
The new law alleviates the harsh consequences of the petitioner or principal beneficiary’s death by allowing certain surviving relatives to continue the permanent residence process, irrespective of the death of:
- petitioners in family-based immigrant visa cases
- principal beneficiaries in family-based or employment-based visa cases
- petitioners in refugee/asylee relative petitions
- principal T or U nonimmigrants; or
- principal asylees.
Specifically, § 204(l) permits the approval of an immigrant petition, as well as any adjustment application and related application, if the surviving relative:
- resided in the U.S. when the qualifying relative died
- continues to reside in the U.S. on the date of the decision on the pending petition or application, and
- is one of the following:
- principal beneficiary of a pending or approved immediate relative petition (spouse, parent, minor child of a U.S. citizen);
- principal or derivative beneficiary of a pending or approved family-based preference petition
- derivative beneficiary of a pending or approved employment-based petition;
- beneficiary of a pending or approved Refugee/Asylee relative petition;
- beneficiary admitted as a derivative “T” or “U” nonimmigrant; or
- derivative asylee
In certain cases, the surviving relative is required to submit an affidavit of support from a substitute sponsor in order to benefit from section 204(l). This requirement applies to beneficiaries of family-based preference petitions (adult sons and daughters of US citizens, spouses and children of permanent residents, unmarried adult sons and daughters of permanent residents, and brothers and sisters of US citizens). The surviving relatives in these categories must present an affidavit of support from a substitute sponsor related to them in one of the following ways: spouse, parent, mother-in-law, father-in-law, sibling, son or daughter (if at least 18 years of age), son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian. Substitute sponsors must also be U.S. citizens or lawful permanent residents, at least 18 years old, and have sufficient income or assets to meet the requirements.
USCIS will apply §204(l) to all cases adjudicated on or after October 28, 2009, even if the death occurred prior to this date. USCIS will also allow untimely motions to reopen cases denied before the new law came into effect, for those who are still eligible for benefits under the statute. Finally, for any petitions automatically revoked upon the death of the petitioner or principal beneficiary prior to enactment of section 204(l), the USCIS memo states that reinstatement of such petition is generally appropriate even if the death occurred before October 28, 2009, as long as the beneficiary meets all requirements under section 204(l).
- Mr. Nowak is sponsored for permanent residence by his U.S. citizen brother. After the I-130 petition is approved, Mr. Nowak waits many years for his priority date to become current so that he can file his application for permanent residence. Unfortunately, Mr. Nowak dies before the priority date becomes current, leaving behind a wife and two small children. Under section 204(l), Mrs. Nowak and the children can still apply for permanent residence based on the approved I-130 if they meet all remaining requirements, despite the death of the main beneficiary.
- Ms. Kim’s U.S. citizen mother has filed an I-130 petition on her behalf. Before Ms. Kim can obtain permanent residence, the mother dies, leaving Ms. Kim without a sponsor. The new law allows Ms. Kim to apply for permanent residence based on her deceased mother’s petition, as long as she has a substitute sponsor and meets the remaining requirements.
- Mr. Nunez is an employee of XYZ Company. The company decides to sponsor him for permanent residence and secures an I-140 immigrant petition approval on his behalf. Mr. Nunez’s employment-based sponsorship comes to an end when he unexpectedly dies; however, his wife and minor children can still continue the application process under the new law.
Section 204(l) provides much needed relief to surviving beneficiaries of deceased petitioners and principal beneficiaries, but it does impose several important requirements, including residence in the United States and substitute sponsorship in some cases. Therefore, it is extremely important to consult with an immigration attorney before filing any type of petition or application for benefits following the death of a qualifying relative.