Surviving Relatives in the US to Get Immigration Relief.

By Attorneys Robert L. Reeves and Joseph I. Elias

In a recent article, we wrote about Congress’ recent change to immigration law commonly known as the Survivors Act or Section 204(l) of the Immigration and Nationality Act (INA).  Under INA § 204(l), one may become a permanent resident through a deceased “qualifying relative” as long as the immigrant resided in the U.S. when the relative died and continued to reside in the US until visa numbers became available. The United States Citizenship and Immigration Services (USCIS) recently released a draft policy memorandum for the public to comment on how this new law should be implemented by its officers. 

It is encouraging to see that USCIS is reading this law expansively.   Specifically, the USCIS is interpreting the term “qualifying relative” broadly. The USCIS’  memorandum includes the family of a deceased principal beneficiary and employment-based visa petition as a qualifying relative.  This means derivative beneficiaries may now still apply to adjust status to permanent resident status even if the principal beneficiary has died.  Prior to INA § 204(l), the death of either the petitioner or the principal beneficiary prior to the grant of permanent resident status meant the petition died.  By operation of law, the USCIS could not grant permanent resident status. 

Prior to the enactment of INA § 204(l), two very narrow exceptions existed.  The first was for widows or widowers who were married to their US citizen spouse petitioner for over two years.  They could continue to immigrate under a self-petition.  The second exception allowed the USCIS to reinstate family-based petitions only for humanitarian purposes which is known as humanitarian reinstatement.  Humanitarian reinstatement is extremely difficult to obtain and is only available when a petition was approved and the petitioner dies in a family-based petition.  There is no humanitarian reinstatement for employment-based petitions when the principal beneficiary dies.

This has now all changed under INA § 204(l) for those immigrants living in the US when the petitioner or principal beneficiary dies. The benefits of the new law only apply to those residing since the death and continuing to reside in the U.S.  Unfortunately, the benefit is not extended to beneficiaries who live outside of the U.S. These relatives will still need to apply for humanitarian reinstatement if eligible.  The new law also applies to those whose petitions are pending before the USCIS.  Widows and widowers no longer need to be married to their U.S. citizen spouse for two years if they resided in the U.S. when the petitioner died and they continue to reside in the U.S.  The new law also applies to those cases where a petition is pending before the USCIS.  This means for example, if a U.S. citizen petitions his wife, and while the USCIS is processing the case, the U.S. citizen dies, the wife may still immigrate if she resided in the U.S. and continued to reside in the U.S. 

It is encouraging to see that the USCIS is including principal beneficiaries of immigrant visa petitions under the definition of “surviving relative”.  So, for example, if a U.S. citizen petitions his married son and the son passes away before a visa number becomes available, the son’s wife and children would still be able to immigrate if eligible.  The family would have to meet the physical presence requirements of the law.  The USCIS is also allowing this for employment-based cases, asylum, T and U visa applicants. 

These developments are especially encouraging in the employment-based  scenario, where it sometimes takes 8 years or more for visa numbers to become available.  Prior to the change in law, if an immigrant died before his employment-based visa number became available, his family would not be able to immigrate. 

Under the draft memo, the USCIS has also indicated that it would accept Motions to Reopen cases that were denied prior to the passage of the new law.   They must show that they are still otherwise eligible to immigrate to the US and are not barred by other provisions of the INA. The new law also has the additional requirement that applicants provide an Affidavit of Support from a qualifying sponsor.  The qualifying sponsors are limited to a spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild of a sponsored alien, or a legal guardian who must be either US citizens or permanent residents over the age of 18 and residing in the US.

Comments to the draft are due on June 1, 2010 and the policy memorandum should be finalized shortly. Individuals who may be affected by the new law should seek an evaluation from an experienced immigration attorney.