Consider this common factual situation. You are over 21 years old and your US citizen parent petitions you while you are inside the United States. Since this is a preference category, you have to wait many years for your priority date to be current. As the years go by, your petitioning parent dies which in turn revokes the petition. Can you still apply for your green card when your priority date becomes current?
Under Section 204(l) of the immigration and nationality act, you may apply for a green card despite the death of the petitioner once your priority date becomes current as long as 1) you were in the United States at the time of the Petitioner’s death, and 2) you continuously resided in the United States until the present time when you apply for adjustment of status. This provision does not apply to beneficiaries that are outside the United States. This provision also applies to both approved and pending Petitions.
This avenue is available to all family based petitions as outlined in INA section 204(l)(2). This includes 1)immediate relative petitions and 2)preference family petitions such as unmarried sons and daughters of us citizens, spouses and unmarried sons and daughters of lpr, married sons and daughters of us citizens, and brothers and sisters of us citizens.
Derivative beneficiaries of pending or approved employment- based immigrant visa petitions are also covered by this section. This includes the spouse and unmarried children under age 21 of an individual who was sponsored under the employment-based category.
If you fail to meet the requirements of INA 204(l) because you did not continously reside in the US since the death of the Petitioner, you may still try to reinstate the Petition under 8 CFR Sec. 205.1(a)(3) Humanitarian Reinstatement. The DHS (Dept. of Homeland Security) may exercise discretion “for humanitarian reasons” to reinstate the petition and to allow the Affidavit of Support requirements to be satisfied by the qualifying I-864 of a spouse, parent, mother-in-law, father-in-law, sister-in-law, brother-in-law, grandparent, or grandchild or legal guardian of the beneficiary, as long as the petition was “approved” prior to the Petitioner’s death.
DHS discretion does not mean “guaranteed” approval. The case will be evaluated on a case by case basis. Some of the factors that the DHS may consider are 1) disruption of an established family unit; 2) hardship to US citizens or lawful permanent residents; 3) beneficiary is elderly or in poor health; 4) beneficiary has had lengthy residence in the US; 4) beneficiary has no home to go to; 5)undue delay by USCIS or consular officer in processing petition and visa; 6) and Beneficiary has strong family ties in the United States.
The beneficiary must be prepared to show proof of the original I-130 that was filed, proof of I-130 approval if approved, a copy of the Petitioner’s death certificate, proof of substitute sponsor’s relationship to the beneficiary, and meet all the I-864 requirements
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Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected]; Website kenreyeslaw.com.
