USCIS Clarifies Immigration Eligibility for Family of the Deceased

By Attorneys Robert L. Reeves and Jeff L. Khurgel

In October of 2009, Congress made an important and much-needed change to immigration law by passing Section 204(l) of the Immigration and Nationality Act (INA). This section of law allows one to apply for their Green Card even if their petitioning family member has passed away. In the past, only qualifying widows and widowers of U.S. citizens were provided with the remedy of obtaining permanent resident status when their spouse passed away.

Although Section 204(l) has been in existence for over one year, immigration officials have been slow to adapt to the new law. Because the new law creates such a broad benefit for a variety of individuals throughout the U.S., Immigration Officers have been understandably reluctant to interpret the new law too generously in light of the many situations in which it may apply. In light of this, the U.S. Citizenship and Immigration Services (USCIS) recently released a Policy Memorandum which provides its Officers with clarification regarding exactly who can qualify for immigration benefits under the new law. Below, we discuss some of the highlights.

Section 204(l) permits immigration benefits for an applicant who is the beneficiary of a pending or approved family-based petition. Benefits can also flow to the derivative child or spouse of the beneficiary of both family and employment-based petitions, if other eligibility requirements can be satisfied.

• Example #1: If Father petitioned his adult or minor child, but Father passed away, the child may still immigrate.

• Example #2: If Grandmother petitioned Mother, but Mother passed away, the derivative Grandchildren may still qualify for benefits based on Grandmother’s petition.

• Example #3: If Company petitioned Father as an employee, but father passed away, the Children of Father may still qualify for benefits based on the Company’s petition.

Other categories of applicants; such as asylum seekers, their derivatives, and T and U status derivative beneficiaries may also qualify.

In order to qualify, the immigrant beneficiary must have resided in the United States when the deceased qualifying relative died and must continue to reside in the U.S. on the date of the decision on the pending petition or application. This does not mean that the immigrant must have been physically present on the exact day that their relative passed away. It means that the immigrant must have maintained a residence in the U.S. at the time of the qualifying relative’s death and up until a decision on the pending petition or application.

Under Section 101(a)(33) of the INA, a someone “resides” in the United States when their home in the U.S. is a “principal, actual dwelling place in fact, without regard to intent.” Thus, if the immigrant’s “residence” was in the United States at the required times, the immigrant resided here for purposes of section 204(l). The statute does not bar someone who was actually abroad when the qualifying relative died from proving that the aspiring immigrant still resides in the United States. This provision may prove useful for individuals who had been living in the U.S. when their family member passed away, but happened to be out of the country on the exact day when their relative passed away.

It is also relevant to note that Section 204(l) does not require the immigrant applicant to show that he or she was, or is, residing here lawfully. The concept of residence pertains to where someone maintained a primary living place, regardless of one’s immigration status.

As described above, the derivatives of a qualifying relative may qualify for benefits notwithstanding the death of the principal beneficiary (the derivatives’ parent or spouse). The USCIS Policy Memorandum clarifies the residence requirement on the part of the derivative beneficiaries. According to the guidance, the derivative beneficiaries can benefit if any one of the beneficiaries of a covered petition meets the residence requirement.

In a situation where a company petitions the father/husband in a family, and the father/husband passes away, only one of the derivative beneficiaries must meet the residence requirement. In this example, suppose the derivative beneficiaries consisted of a wife and three children. Suppose further that only the wife meets the residence requirement, while the three children do not. The USCIS makes clear that as long as one derivative meets the residence requirements of section 204(l), all of the children may immigrate to the same extent that would have been permitted if the father had not died. This provision is a significant benefit to many possible applicants and should be closely considered where multiple derivative beneficiaries are involved.

Reeves & Associates welcomes the recent Section 204(l) clarifications from USCIS. The new law may benefit many immigrant families seeking to reunite despite the death of a loved one. In order to understand whether a particular family or individual can benefit from the new law, a detailed consultation with an experienced law firm is recommended.