What action should you take in light of INA 204(l):
If you or a family member had their cases denied due to the death of a petitioner, you need to file an untimely motion to reopen your case, or if you have not yet filed, file now.
USCIS has for years denied cases when the petitioner (USC Spouse or other relative) died while the petition was pending. Now section 204(l) permits the approval of a visa petition as well as any adjustment (residency) application and related application, if the alien seeking the benefit resided in the United States when the qualifying relative died AND continues to reside in the United States on the date of the decision on the pending petition or application; and is at least 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, Refugee/Asylee Relative Petition;
- An alien admitted as a derivative “T” or “U” nonimmigrant; or
- A derivative asylee under section 208(b)(3) of the Act
USCIS has unfortunately narrowly interpreted the term “qualifying relative” and is inferring through their recent memo that it means an individual who, immediately before death, was:
- The petitioner in a family-based immigrant visa petition under section 201(b)(2)(A)(i) or 203(a) of the Act;
- The principal beneficiary in a family-based visa petition case under section 201(b)(2)(A)(i) or 203(a) of the Act;
- The principal beneficiary in an employment-based visa petition case under section 203(b) of the Act;
- The petitioner in a refugee/asylee relative petition under section 207 or 208 of the Act;
- The principal alien admitted as a T or U nonimmigrant; or
- The principal asylee, who was granted asylum under 208 of the Act.
Ricky Malik, Esq.
Visa Attorney
