USCIS on Immigration Benefits After Death of Qualifying Relative
Originally posted on MurthyDotCom on 04.Mar.2011, this NewsBrief has been updated for our readers.
This update is regarding a U.S. Citizenship and Immigration Services (USCIS) memorandum entitled, Approval of Petitions and Applications After the Death of the Qualifying Relative Under New Section 204(l) of the Immigration and Nationality Act. The memo provides guidance on the law pertaining to the impact of the death of certain family members on eligibility for immigration benefits. The policy guidance and instructions that govern the adjudication of petitions and approvals under the provisions of Immigration and Nationality Act (INA) 204(l) is described here for our readers.
Overview of Immigration Benefits Under Section INA 204(l)
Changes in the law were enacted on October 28, 2009, which greatly expanded the eligibility for certain continued immigration benefits to surviving family members through a deceased qualifying relative. The law applies to the principal and any derivative beneficiaries of a pending or approved family-based visa petition, any derivative beneficiaries of an employment-based petition, beneficiaries of a pending or approved refugee / asylee relative petition (I-730), derivative family members of T and U nonimmigrants, and derivative asylees.
Who is the Qualifying Relative?
While the law does not specifically define a qualifying relative, the USCIS guidance clarifies the meaning of this term, which includes a relative who, immediately before death, was:
The petitioner in a family-based immediate relative petition
The deceased relative was a U.S. citizen who filed Form I-130 on behalf of his/her parent or minor child. An immediate relative also includes the spouse of a U.S. citizen. However, the spouse of a U.S. citizen is protected under a separate provision of law that applies to the widow/er of a U.S. citizen.
The deceased relative was a U.S. citizen or lawful permanent resident (LPR) who filed Form I-130 on behalf of an eligible preference relative.
The principal beneficiary in other family-based petitions
The deceased relative was the beneficiary (person for whom the form was filed) of an I-130 family petition filed by a U.S. citizen or permanent resident relative.
The principal beneficiary in an employment-based (EB) immigrant petition
The deceased relative was the beneficiary of an EB1, EB2, or EB3 petition on an I-140, or an EB4 or EB5 petition.
The petitioner in a refugee / asylee petition
The deceased relative was granted refugee or asylee status and filed an I-730 refugee / asylee relative petition for a spouse and/or child/ren. These provisions also apply to derivative asylees if the principal asylee is the qualifying relative.
The principal T or U nonimmigrant
The deceased relative was the principal foreign national admitted as a T or U nonimmigrant.
U.S. Residence Requirement for Surviving Relative
One important restriction within this law is that it applies only to cases in which the surviving relative resided in the United States at the time of the qualifying relative's death. Additionally, the surviving relative must continue to reside in the United States in order to obtain benefits under these provisions. The memo clarifies that the U.S. residence requirement does not mean that the surviving family member had to be physically present in the U.S. at the time of the qualifying relative's death and the adjudication of the application or petition. It is sufficient for the individual seeking the benefit to demonstrate that the United States was his/her "principal, actual dwelling place in fact." If so, it still may be possible to qualify for the benefit even if the beneficiary was absent from the U.S. at the time of the qualifying relative's death. The law does not require one seeking the benefit to show that s/he was residing in the United States lawfully in order to benefit from the application of the law. (The absence of a proper immigration status, however, ultimately could prevent one from obtaining immigration benefits due to other requirements in the law.) The memo notes that, in cases involving multiple beneficiaries, it is sufficient for only one of the beneficiaries to meet the residence requirements.
Benefits Apply in Cases Adjudicated After October 28, 2009
The USCIS memo confirms that the application of the law is not limited to cases filed on or after the effective date of October 28, 2009. The survivor provisions also apply to cases that were filed prior to October 28, 2009, provided they were adjudicated on or after October 28, 2009.
New Affidavit of Support Requirement from New Family Member
Cases that require the filing of an affidavit of support (I-864) usually require an execution of a new affidavit of support filed by a substitute sponsor. As the USCIS explains, this is because an affidavit of support is a legally binding contract between the sponsor and the sponsored individual. As is the case with most contracts, it is void upon the death of the sponsor and, therefore, the case would require a new binding contract in order to move forward.
Survivor Law Does Not Waive Other Requirements
Notwithstanding the broad application of the law providing for relief to surviving beneficiaries, it is important to note that beneficiaries still have to demonstrate that they meet all other eligibility requirements under the law. For example, as the USCIS warns, individuals seeking to adjust status through a deceased, qualifying relative must establish that they are admissible to the United States. In some cases, a waiver of inadmissibility must be filed before the surviving relative may adjust her/his status. Those waivers typically require a showing of extreme hardship to a qualifying U.S. citizen or lawful permanent resident (LPR) qualifying relative. In those cases, "the fact that the qualifying relative has died will be noted in the decision and deemed to be the functional equivalent of a finding of extreme hardship." However, the applicant still must establish that s/he is deserving of the waiver. Thus, as a second step, the USCIS will determine if a favorable exercise of discretion is warranted in order to grant the waiver.
Other Relief may be Available
Those cases that do not fall under the application of the surviving benefits law may still be approved as the USCIS has discretion not to revoke the approval of a petition that was revoked upon a petitioner's death. 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.
The USCIS also provided guidance on filing an untimely motion to reopen a denied petition or application for which the decision was rendered prior to October 28, 2009. These motions should be accompanied by the standard fee, proof of the relative's death, and proof of the residence requirements.
Seek Legal Advice in Such Matters
The guidance issued by the USCIS on the proper interpretation of the law allowing for approval of petitions and applications after the death of the qualifying relative is complex and provides instructions and interpretations relating to various possible scenarios beyond the summary in this article. As each individual's situation is different, it is important for anyone who believes s/he may benefit from this law to consult a knowledgeable, experienced immigration lawyer before taking action.
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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.