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New USCIS Policy Helps Surviving Beneficiaries of Immigrant Visa Petitions

Posted on Tuesday, March 15, 2011

On October 28, 2009, President Obama signed a bill into law significantly expanding the rights of beneficiaries of immigrant visa petitions who are confronted with the death of their petitioner or principal beneficiary.  For many years, USCIS had taken the position that the law did not permit beneficiaries of immigrant visa petitions to 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 adjudication of the beneficiary’s application for permanent residence. 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.

The new law alleviated the harsh consequences of the petitioner or principal beneficiary’s death by allowing many surviving relatives to continue the permanent residence process, irrespective of the death of the petitioner or principal beneficiary. A USCIS Policy Memo dated December 16, 2010 directs USCIS officers to follow the new law in adjudicating any petition or application to which the new law might apply. As an example of how the new policy works, consider the following fictitious case. Ms. Peet’s U.S. citizen mother has filed an I-130 immigrant visa petition on her behalf. Before Ms. Peet can obtain permanent residence, her mother dies, leaving Ms. Peet without a sponsor. The new law allows Ms. Peet 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.

The new law, codified as section 204(l) in the Immigration and Nationality Act, 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 certain cases. If you are a surviving beneficiary who needs assistance in determining whether you might benefit from section 204(l), please call our office to schedule a consultation.



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