Section 204(l) of the Immigration & Nationality Act allows certain beneficiaries (and derivative beneficiaries) to continue with an Immigrant Visa request or Adjustment to Permanent Residence application even after the Form I-130 petitioner (or principal beneficiary) has died.
Normally, a pending petition must be denied or an approved petition must be revoked if the petitioner dies before the beneficiary has already obtained the green card, based on federal regulations. But INA 204(l) preserves U.S. immigration benefits for certain surviving relatives with pending or approved petitions.
A December 16, 2010 USCIS Policy Memorandum, titled Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act, outlines who is protected by section 204(l) and how the relief works.
Who is Protected by Section 204(l)?
Unlike the survivor benefits for widow(er)s of U.S. citizens, and unlike humanitarian reinstatement for principal beneficiaries of approved petitions, section 204(l) relief protects a broader category of persons if they show they resided in the United States at the time of the death, and they continue to reside in the United States.
Section 204(l) provides benefits not only when the U.S. citizen or permanent resident petitioner dies, but also, in some cases, when the principal beneficiary or principal applicant dies. It allows eligible derivative beneficiaries to continue with the green card process even if the principal beneficiary dies. Derivative beneficiaries are applicants who cannot be directly petitioned for, but may accompany or follow-to-join the principal beneficiary of the petition based on a spousal or parent-minor child relationship.
You may be eligible for 204(l) relief if you are a:
• Principal or derivative beneficiary of a pending or approved I-130 family-based petition, when the petitioner died;
• Derivative beneficiary of a pending or approved I-130 petition, when the principal beneficiary died;
• Derivative beneficiary of a pending or approved I-140 employment-based petition, when the principal beneficiary died;
• Beneficiary of a pending or approved I-730 refugee/asylee relative petition, when the petitioner died;
• Derivative of a T or U nonimmigrant visa holder (T-2, T-3, T-4, T-5, U-2, U-3, U-4, U-5), admitted as a derivative, and the principal (T-1 or U-1) visa holder has died;
• Derivative asylee (AS-2 or AS-3) and the principal asylee (AS-1) has died.
Certain petitions have more than one beneficiary. For 204(l) relief to apply, at least one beneficiary or derivative beneficiary must be residing in the United States at the time of the death and continues to reside in the United States. If one beneficiary meets the residence requirement, all the beneficiaries can benefit from section 204(l) relief.
Residence is your primary home or your “principal, actual dwelling place in fact, without regard to intent.” Residence is not the same as physical presence or as having lawful nonimmigrant status in the United States. You may qualify while briefly abroad if you can show that your primary home is in the United States. Incidental travel for participating in business trips, taking a vacation, or visiting family abroad does not affect 204(l) eligibility.
204(l) applicants may be found inadmissible under INA 212 at the time of the immigrant visa or adjustment of status interview. Inadmissibility grounds include INA 212(a)(4)(public charge), INA 212(a)(9)(B)(unlawful presence), and INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain U.S. immigration benefits).
Family-based applicants are normally required to submit a Form I-864, Affidavit of Support, to show they will not become a public charge to the United States. The death of the petitioner does not change this requirement.
If the petitioner dies, there has to be a Form I-864 from a substitute sponsor who is a U.S. citizen or lawful permanent resident, at least 18 years old, and the spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years old), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian of the applicant.
Otherwise, you have to qualify for an exemption from filing the Form I-864 in one of two ways:
1. You have earned or can receive credit for 40 quarters (credits)/10 years of work in the United States, as defined by the Social Security Act, regardless of the immigrant category. (Check your Social Security earnings statements. Do not count any quarters during which you received a means-tested public benefit.)
2. You are under age 18, unmarried, immigrating as the child of a U.S. citizen, are not likely to become a public charge, and will automatically become a U.S. citizen pursuant to INA section 320 upon your admission to the United States.
Unlawful Presence or Fraud/Willful Misrepresentation
You may still apply for inadmissibility waivers that require “extreme hardship to a qualifying relative” — such as the INA 212(a)(9)(B)(v) waiver for unlawful presence and the INA 212(a)(6)(C)(i) waiver for fraud or willful misrepresentation — if the qualifying relative is also the relative who died. USCIS will consider the death of a qualifying relative as the “functional equivalent” of a finding of extreme hardship, i.e. USCIS will assume that the death of the qualifying relative amounts to extreme hardship for waiver purposes.
Your case, however, must still warrant the favorable exercise of discretion (positive factors outweigh the negative factors) for USCIS to grant the waiver. Furthermore, you must have a qualifying relative who was already a U.S. citizen or permanent resident at the time of the death to be eligible for the waiver. If the deceased relative is not a qualifying relative for waiver purposes, you still need a qualifying relative to be eligible for the waiver. For example, if the principal beneficiary of an I-130 petition dies before he becomes a permanent resident, his spouse (derivative beneficiary) may lack a qualifying relative to apply for a waiver if she is found inadmissible.
“Public Interest” Standard and Favorable Exercise of Discretion
Even when section 204(l) applies, USCIS may still deny the petition, as a matter of discretion, if the approval would not be in the “public interest.” This exercise of discretion is not subject to appeal, although USCIS may review a timely motion to reopen or motion to reconsider.
USCIS has stated, “USCIS officers will not, routinely, use this discretionary authority to deny a visa petition that may now be approved, despite the death of the qualifying relative. In a visa petition proceeding that is not subject to section 204(c) of the Act or some other approval bar, the overriding issue is simply whether the beneficiary qualifies for the visa classification sought. ”
Adjustment to permanent resident status, through the filing of a Form I-485 application, is also a discretionary relief that USCIS may deny as a matter of discretion. Furthermore, certain applicants are not eligible at all for adjustment and must depart the United States to apply for an immigrant visa at the U.S. Consulate abroad.
What is the Effective Date of Section 204(l)?
Section 204(l) became law on October 28, 2009. The provision applies only to petitions and applications adjudicated on or after that date. It applies to cases where the petitioner or qualifying relative died before October 28, 2009, but the petition or application was pending on that date or adjudicated after that date.
USCIS has stated it will allow untimely motions to reopen a petition, adjustment application, or waiver application that was denied before October 28, 2009 if 204(l) would permit approval. If USCIS denies a petition or application on or after October 28, 2009 without considering whether 204(l) applies, the agency must reopen the case on its own motion.
How to Apply for 204(l) Relief
There is no specific application form to submit or filing fee to pay to request 204(l) relief. To apply for 204(l) benefits, you should submit a letter to USCIS explaining your eligibility and provide supporting documents. If a petition is pending, you need to ask for an approval under 204(l) despite the death. If the petition was approved prior to the death, you need to request the reinstatement of the approval under 204(l).
USCIS instructs applicants to include the following with a 204(l) request:
• Full name of the deceased relative, the principal applicant and any derivative beneficiaries
• Any A-numbers of the deceased relative, the principal applicant and any derivative beneficiaries
• The receipt number for the underlying petition or application
• The relative’s death certificate, plus certified English translation if document is in a foreign language
• Proof of residence in the United States at the time of the death up until the present time by at least one beneficiary (e.g. rental lease or mortgage, utility bills, school records, or pay stubs.)
• Form I-864, Affidavit of Support, by a substitute sponsor, or a Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, if applicable.
To determine where and when to file the section 204(l) request, you may refer to the USCIS If-Then chart on its website, which is replicated below:
Your visa petition (e.g., Form I-130 or Form I-140) or Form I-730 was pending when your relative died and at least one beneficiary, or derivative beneficiary, resided in the United States when your relative died and continues to reside in the United States
Send your written request to the USCIS office currently processing your case (the address is on the receipt notice (Form I-797) or, if USCIS transferred the case to a different office, send your request to the new office listed on the transfer notice)
Your petition was already approved when your relative died AND you are not ready and/or able to file Form I-485 yet
|Send your written request to the office that approved your petition|
Your petition was already approved when your relative died AND you have a visa available and are ready to file Form I-485
|Send your written request with your Form I-485 package per Instructions for Form I-485|
You have already filed Form I-485 (whether or not your petition was pending or already approved)
Send your written request to the USCIS office having jurisdiction over your application
You are in T or U nonimmigrant status
|Send your written request to the Vermont Service Center|
|You are in asylee status || |
Send the written request with your Form I-485 package when you file for adjustment of status, if applicable, per Instructions for Form I-485
Humanitarian reinstatement is not be confused with 204(l) relief. If, however, you believe the regulations allowing humanitarian reinstatement also apply to you, you should submit a single written request asking USCIS for both types of relief.
Consult a Qualified U.S. Immigration Attorney
Because there is no standardized application form, there is no means for USCIS to issue a receipt notice for a 204(l) request for relief. It is difficult for applicants to track progress or receive updates on such cases.
Work with a qualified U.S. immigration attorney to prepare and file a clear, properly documented 204(l) request with USCIS. The attorney can also help you notify the U.S. Department of State that you are asking for this relief from USCIS, if you will be applying for an immigrant visa at the U.S. Consulate instead of seeking to adjust to permanent resident status within the United States.
For information on other possible remedies for surviving relatives, read our related articles:
Also check out Episode 4 on The Legal Immigrant podcast:
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
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