The world of immigration consists largely of visa petitions filed with the U.S. Citizenship and Immigration Services (USCIS). These visa petitions require a qualified individual, known as petitioner, to petition for an eligible alien, known as the beneficiary. There are two types of beneficiaries: a principal beneficiary, such as the wife of a qualified petitioner, and a derivative beneficiary, such as the child of such petitioner.
Many things may happen during the time it takes to approve a petition, one being the death of the petitioner or principal beneficiary. In such a case, what happens to the petition when the petitioner or principal beneficiary die before it is approved?
It has long been the law that did not allow the beneficiary to obtain approval of a petition if the petitioner died before the petition was approved. Cancellation or revocation of an approved petition also occurred when the petitioner died, leaving the beneficiaries out in the cold. This stance left many individuals with no other avenues to obtain lawful permanent residence, or green card. Even worse, surviving widows and children could not draw survivors’ Social Security benefits for lack of a social security number because they had no “legal” status in the United States which allowed them to apply for a social security number.
To alleviate this limitation, Congress amended the Immigration and Nationality Act several years ago to allow reinstatement for humanitarian reasons of a revoked petition by reason of such death. In late 2009, Congress made further changes by amending section 204(l) of the Act, thus allowing the USCIS to approve a petition even if the petitioner is deceased.
Section 204(l) of the Act now allows the beneficiary or derivative beneficiary to continue to seek approval of a petition when the “qualifying relative” has died so long as the beneficiary or derivative beneficiary lived in the U.S. at the time of death and continues to reside in the U.S. “Qualifying relative” encompasses those who before death were petitioners or principal beneficiaries of a petition.
In other words, in order to reap these new advantages of § 204(l), the alien beneficiary seeking the benefit must have resided in the U.S when the qualifying relative died, continue to reside in the U.S. on the date of the decision on the pending petition or application, and be a:
- beneficiary of a pending or approved immediate relative visa petition;
- principal and derivative beneficiary of a pending or approved family-based petition;
- derivatives of a pending or approved employment-based petition;
- beneficiary of a pending or approved refugee/asylee petition; or
- a derivative of a T or U visa nonimmigrant.
USCIS allows the alien to prove they were residents of the U.S. at the time of death even if they were not physically present at the time of the death of the “qualifying relative” and requires that only one beneficiary meet the residency requirement in order to approve the petition.
So exactly what does all this mean? Under 204(l), if all elements are met, USCIS officers can now approve a pending petition even if the qualifying relative has died.
The law does not change the affidavit of support requirement for family based petitions nor does it change the requirements for qualification in an adjustment application. The law merely offers a glimmer of hope to those petitions and application once doomed because of the death of the petitioner or principal beneficiary. The effects of section 204(l) remains to be seen but at the moment the new law serves as a way to continue on the path of family reunification.
Contributing writer: Susana Reyes