Approval of Petitions and Applications after the Death of the Qualifying Relative

Policy Memorandum
SUBJECT:
Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act
Revisions to Adjudicator’s Field Manual (AFM): New Chapter 10.21 and an Amendment to Chapter 21.2(h)(1)(C) (AFM Update AD-10-51)

Purpose
This Policy Memorandum (PM) ensures that USCIS uniformly and consistently adjudicates petitions and applications in light of section 204(l) and 213A(f)(5) of the Immigration and Nationality Act (“the Act”), 8 U.S.C. §§ 1154(l) and 1183a(f)(5).

Scope
Unless specifically exempted herein, this PM applies to and is binding on all USCIS employees.

Authority
Sections 204(l) and 213A(f)(5) of the Act, 8 U.S.C. §§ 1154(l) and 1183a(f)(5), as amended by § 568(d) and (e) of the DHS Appropriations Act, 2010, Public Law 111-83 (“Public Law 111-83”), 123 Stat. 2142, 2187-88 (2009).

Background
For many years, USCIS had taken the position that the law did not permit the beneficiary of a visa petition to obtain approval of the petition if the petitioner died while the petition remained pending. See Matter of Sano, 19 I&N Dec. 299 (BIA 1985); Matter of Varela, 13 I&N Dec. 453 (BIA 1970).

New section 204(l) of the Act changes this governing law with respect to an alien who is seeking an immigration benefit through a deceased “qualifying relative.” Section 204(l) permits the approval of a visa petition or refugee/asylee relative petition, as well as any adjustment application and related application, if the alien seeking the benefit:

1. Resided in the United States when the qualifying relative died;
2. Continues to reside in the United States on the date of the decision on the pending petition or application; and
3. Is at least one of the following:
● The beneficiary of a pending or approved immediate relative visa petition;
● The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries;
● Any derivative beneficiary of a pending or approved employment-based visa petition;
● The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative Petition;
● An alien admitted as a derivative “T” or “U” nonimmigrant; or
● A derivative asylee under section 208(b)(3) of the Act.

Section 568(d) of Public Law 111-83 does not expressly define the “qualifying relative.” From the list of aliens to whom the new section 204(l) applies, however, USCIS infers that “qualifying relative” means an individual who, immediately before death, was:
● The petitioner in a family-based immigrant visa petition under section 201(b)(2)(A)(i) or 203(a) of the Act;
● The principal beneficiary in a family-based visa petition case under section 201(b)(2)(A)(i) or 203(a) of the Act;
● The principal beneficiary in an employment-based visa petition case under section 203(b) of the Act;
● The petitioner in a refugee/asylee relative petition under section 207 or 208 of the Act;
● The principal alien admitted as a T or U nonimmigrant; or
● The principal asylee, who was granted asylum under 208 of the Act.

Section 568(e) of Public Law 111-83 provides a conforming amendment to INA section 213A(f)(5)(B) relating to affidavits of support. INA section 212(a)(4)(C) provides that, to avoid public charge inadmissibility, most immediate relatives and family-based immigrants, and some employment-based immigrants, must have filed an affidavit of support on their behalf that meets the requirements of INA section 213A. If, after the death of a qualifying relative, a visa petition is approved or not revoked under new INA section 204(l), then another individual who qualifies as a “substitute sponsor” must submit a Form I-864, Affidavit of Support under section 213A of the Act. If the alien is not required under sections 212(a)(4)(C) and 213A of the Act and 8 C.F.R. § 213a.2(a)(2)(ii) to have a legally binding affidavit of support, then there is no need for a substitute sponsor to submit a Form I-864.

Policy
USCIS officers will follow section 204(l) and section 213A(f)(5) of the Act, as amended by sections 568(d) and (e) of Public Law 111-83, and the amendments to the Adjudicator’s Field Manual (AFM) made by this PM, in adjudicating on or after October 28, 2009, any petition or application to which section 204(l) and section 213(A)(1)(5) apply.

Section 568(d) and (e) of Public Law 111-83 became effective on October 28, 2009 when the President signed Public Law 111-83. This PM applies to any case adjudicated on or after October 28, 2009 even if the case was filed before October 28, 2009.

For a case denied before October 28, 2009 USCIS policy is that an alien may file, with the proper filing fee, an untimely motion to reopen a petition, adjustment application, or waiver application, if new section 204(l) would now allow approval of a still-pending petition or application. See AFM chapter 20.5(c)(8), as added by this PM, for complete guidance on this issue.