Attorneys Nancy E. Miller and Michael Bhotiwihok
Family-based immigration petitions are subject to prolonged waiting times before visas become available to beneficiaries. More applications are filed per year than there are visas available. As a result, even though the petition may be approved in a short time, it may be many years before the priority date (and, thereby, the visa) becomes available. Unfortunately, this can result in a situation where the petitioners dies before the beneficiary receives his or her green card. However, that does not mean that the beneficiary’s hopes of immigrating to the United States are over.
Until not too long ago, the death of the petitioner resulted in the automatic denial or revocation of the petition. The beneficiary could apply for humanitarian reinstatement but that is an uphill battle. However, Congress passed a change in law that has brought real relief to hopeful immigrants whose petitioners have died. The law is commonly known by its code section which is 204(l).
The purpose of Section 204(l) is to keep the surviving beneficiary in the same place that he or she would have been but for the petitioner’s death. An intending immigrant who resided in the United States at the time of the death of the petitioner or qualifying relative and who continues to reside in the United States shall have the petition and any related applications adjudicated notwithstanding the death of the petitioner or qualifying relative. It is not necessary for each beneficiary to meet the residence requirement to benefit from Section 204(l). If one does, all of the beneficiaries may immigrate.
The terms “qualifying relative” and “related applications” are very significant. The intending immigrant may have made a material misrepresentation in order to obtain an immigration benefit. In that case, s/he will need a waiver of that ground of inadmissibility. Qualifying relatives for that waiver are parents and spouses only. Sons and daughters do not qualify. Therefore, where the petitioner is the living relative (such as the son or daughter) but the qualifying relative for the waiver is the parent or spouse, under prior law, the alien could not apply for the waiver and, therefore, could not immigrate. Under 204(l), the alien can continue to pursue the waiver notwithstanding the death of the qualifying relative.
In instances where the petitioner and the qualifying relative for a waiver were the same person (such as where the intending immigrant had a criminal conviction), prior to 204(l), the alien would have been unable to proceed with the waiver which requires a showing of extreme hardship to the qualifying relative if the alien is not permitted to remain in the United States. However, Section 204(l) applies in instances when the hardship being claimed would have been the extreme hardship suffered by the qualifying relative if her or she were alive. The waiver applicant must still establish that the positive equities outweigh the negative ones, and a favorable exercise of discretion is merited
While many Section 204(l) cases involve beneficiaries from family-based petitions, the law extends to employment-based derivative beneficiaries, refugee/asylee relative petition beneficiaries, derivative asylees, and T or U visa derivative beneficiaries.
For the beneficiary who resided outside the United States when the petitioner died, a request must be made for humanitarian reinstatement of the petition. A family-based petition will not be revoked upon the death of the petitioner if the beneficiary shows that revocation of the petition will be inappropriate for humanitarian reasons.
For a grant of humanitarian reinstatement, the following discretionary factors are considered: 1) disruption of family, 2) hardship to United States citizens or lawful permanent residents, 3) lack of home for beneficiary to return to, 4) undue delay by USCIS or Consulate in processing petition and visa, and 5) beneficiary’s family ties to the United States.
The death of a loved one need not mean the death of the American Dream. Thanks to 204(l), beneficiaries, derivative beneficiaries, those needing a waiver and others can successfully immigrate to the United States.