Death of Petitioner or Principal Beneficiary

In the past, a petition could not be approved if the petitioner died while the petition remained pending.  In 2009, Congress addressed this scenario with a new statutory provision, INA 204(l). This provision gave foreign nationals the ability to seek an immigration benefit through a deceased qualifying relative in certain circumstances.

An officer may approve an adjustment application, certain petitions, and related applications adjudicated on or after October 28, 2009, if:

·         The applicant resided in the United States when the qualifying relative died;

·         The applicant continues to reside in the United States on the date of the decision on the pending application; and

·         The applicant is at least one of the following:

o   A beneficiary of a pending or approved immediate relative immigrant visa petition;

o   A beneficiary of a pending or approved family-based immigrant visa petition, including both the principal beneficiary and any derivative beneficiaries;

o   Any derivative beneficiary of a pending or approved employment-based immigrant visa petition;

o   The beneficiary of a pending or approved Refugee/Asylee Relative Petition (Form I-730);

o   A foreign national admitted as a derivative T or U nonimmigrant; or

o   A derivative asylee.

This applies to an adjustment of status application adjudicated on or after October 28, 2009, even if the qualifying relative died before October 28, 2009. If a petition or application was denied on or after October 28, 2009, without considering the effect of INA 204(l), and INA 204(l) could have permitted approval, USCIS must, on its own motion, reopen the case for a new decision in light of this new law.

1. Qualifying Relative

A foreign national’s deceased relative must meet the definition of qualifying relative in order for the foreign national to be eligible to seek an immigration benefit through that person.

Although Congress did not expressly define “qualifying relative” in this situation, it did provide a list of foreign nationals who may seek an immigration benefit through the qualifying relative. Therefore, for purposes of seeking adjustment of status, USCIS infers that qualifying relative means a person who, immediately before death, was:

·         The petitioner in an immediate relative immigrant visa petition;

·         The petitioner in a family-based immigrant visa petition;

·         The principal beneficiary in a widow(er)’s immediate relative immigrant visa petition;

·         The principal beneficiary in a widow(er)’s family-based immigrant visa petition;

·         The principal beneficiary in an employment-based immigrant visa petition;

·         The petitioner in a Refugee/Asylee Relative Petition (Form I-730);

·         The principal foreign national admitted as a T or U nonimmigrant; or

·         The principal asylee granted asylum.

2. Residency Requirement

An applicant must have resided in the United States when the qualifying relative died, and continues to reside in the United States to adjust status based on the deceased qualifying relative.

INA 204(l) defines an napplicant’s residence as his or her “principal, actual dwelling place in fact, without regard to intent.” If the applicant’s residence was in the United States at the required times, the applicant meets the residency requirement.

An applicant who was temporarily abroad when the qualifying relative died does not need to prove that he or she still resides in the United States. Further, the statutory definition of residence does not require the applicant to show that his or her presence in the United States is lawful. Execution of a removal order, however, terminates a foreign national’s residence in the United States.

3. Derivatives

For purposes of derivative beneficiaries, as long as any one surviving beneficiary of a covered petition meets the residence requirement, then the petition may be approved despite the death of the qualifying relative. All the beneficiaries may immigrate to the same extent that would have been permitted if the qualifying relative had not died. It is not necessary for each beneficiary to meet the residence requirements in order to remain eligible to adjust.

B. Effect on Adjustment Application

The officer may approve an adjustment application that was pending when the qualifying relative died if:

·         The applicant meets the residency requirement

·         The underlying petition is approved under INA 204(l), or the pre-death approval of the underlying petition is reinstated

·         The applicant meets all other adjustment requirements. INA 204(l) does not limit or waive any eligibility requirements or adjustment bars that apply, other than the lack of a qualifying relative due to death. Therefore, the applicant must have been eligible to apply for adjustment at the time the application was filed and at final adjudication, including visa availability and admissibility. In addition, the applicant must not be barred from adjusting status.

For example, the death of the qualifying relative does not relieve an applicant seeking adjustment under INA 245(a) of the need to establish a lawful inspection and admission or inspection and parole, among other requirements for 245(a) adjustment.

Therefore, if at the time the qualifying relative died, the beneficiary had not yet filed for adjustment, the beneficiary may only apply once the underlying petition is approved or reinstated. However, if at the time the qualifying relative died, there was a properly filed adjustment application pending and the beneficiary was eligible to adjust, approval or reinstatement of an approved underlying petition preserves any eligibility for adjustment that existed immediately before the qualifying relative died.

INA 204(l) may benefit applicants who seek adjustment based on a derivative asylum grant, as a derivative T nonimmigrant, or as a derivative U nonimmigrant. Any one of these aliens may still be eligible for adjustment in light of INA 204(l), despite the death of the qualifying relative. However, the applicant must still establish eligibility for adjustment, apart from the qualifying relative’s death

Contact our experienced immigration lawyers in New York City today at 1 (718) 407-0871 or online at www.prizant-law.com for creative solutions to your clients complex immigration problems.