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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:

Specifically, § 204(l) permits the approval of an immigrant petition, as well as any adjustment application and related application, if the surviving relative:

Substitute Sponsors
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.

Effective Date
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).

Case Examples

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.


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