USCIS Issues Guidelines on Surviving Relatives

The USCIS has recently issued its policy memorandum on the implementation of the law (Section 204(l)) enacted on October 28, 2009 that allows approval of a visa petition or refugee/asylum petition and also adjustment application despite the death of the qualifying relative.

Under the law, the surviving relative seeking the immigration benefit must have resided in the U.S. when the qualifying relative died, and continues to reside in the U.S. on the date of the decision on the pending petition or application.

The surviving relative must be 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 or Refugee/Asylee Relative Petition; an alien admitted as a derivative “T” or “U” nonimmigrant; or a derivative asylee.

The qualifying relative refers to an individual who before his/her death was the petitioner in a family-based immigrant visa petition; the principal beneficiary in a family-based visa petition case; the principal beneficiary in an employment-based visa petition case; the petitioner in a refugee/asylee relative petition; the principal alien admitted as a T or U nonimmigrant; or the principal asylee who was granted asylum.

USCIS released the final Policy Memorandum (dated December 16, 2010) only on January 7, 2011, although it issued the draft memo almost eight months ago. The Policy Memorandum states that it ensures that USCIS “uniformly and consistently adjudicate(s) petitions and applications” in light of the change in the law.

Previously, when the petitioner in a family-based petition died, the petition would be denied or automatically revoked. In other words, the petition died with the petitioner. The only way for the beneficiary to receive an immigrant visa was through a reinstatement of an approved I-130 petition on humanitarian grounds.

Note that Section 204(l) also allows “any related applications” to be adjudicated despite the death of the qualifying relative. This means that the USCIS may grant a waiver or relief from inadmissibility to an alien covered by Section 204(l) even if the qualifying relationship that would have supported the waiver has ended through death.

The guidance allows aliens who were not physically present in the U.S. at the time of the qualifying relative’s death to prove that they were residents in the U.S. It also states that Section 204(l) does not require the alien that he/she was, or is, residing in the U.S. lawfully. Residence, as opposed to mere physical presence, is one’s “principal, actual dwelling place in fact, without regard to intent”.

The alien availing of Section 204(l) must submit an affidavit of support from a substitute sponsor unless a legally binding affidavit of support was not required in his or her case.

The USCIS guidance memo states that the law covers any case adjudicated on or after October 28, 2009 even if the case was filed before that date.

If a case was denied before October 28, 2009, an alien may file a motion to reopen the petition, adjustment application or waiver application.