[COLUMN] Reinstatement for surviving beneficiaries of an I-130 petition filed by a deceased relative

DEAR Attorney Tan,

My US Citizen mother filed an I-130 immigrant petition on my behalf, which has a priority date in February 2000 and which has been approved.  She filed the I-130 petition after I came to the US in 1999 as a tourist from the Philippines.  Since my arrival, I have lived in the US and have been out of status.   Since I was petitioned as an unmarried adult daughter, I was advised that I had to wait several years to get a green card.  Recently, my mother passed away.  Can I still get a green card through my mother’s petition?   -Apparently In Limbo

Dear Apparently In Limbo,

When your mother passed away, the I-130 that was approved on your behalf was revoked by operation of law pursuant to 8 CFR Section 205.1.  However, depending on the facts of a particular case, all is not lost.  You may be eligible to get a green card pursuant to INA Section 204(L).

Under INA Section 204(L), relief from an automatic revocation of an I-130 petition is available to certain surviving relatives.  Surviving relatives who are eligible to seek 204(L) relief include a 1) principal or derivative beneficiary of an I-130 petition that was filed by a deceased permanent resident or U.S. Citizen, and 2) derivative beneficiary of an I-130 petition that was filed by a permanent resident or U.S. Citizen where the principal beneficiary has died. Section 204(L) relief is also available to derivative beneficiaries in I-140 employment-based petitions where the principal beneficiary has died.

Another requirement for Section 204(L) relief is that the person seeking relief must have “residence” in the US.  What is meant by “residence?” It is your primary home or principal actual dwelling place.  At least one beneficiary must have resided in the U.S. when the petitioning relative died, and must continue to reside in the U.S. when seeking Section 204(L) relief.  It is worth noting that all beneficiaries of a petition can benefit from Section 204(L) relief as long as at least one of the beneficiaries meets the residence requirement.  Further, although “residence” is required, Section 204(L) does not require actual physical presence in the U.S. when the relative died.

In your case, it appears that you are eligible to obtain a green card.  You are a principal beneficiary of an I-130 petition filed by your US Citizen mother.  Further, you appear to meet the residence requirement in that you have been in the US since your arrival in 1999—you resided in the US when your mother passed away, and currently reside in the US.  A check of the USCIS visa bulletin indicates the priority date for the I-130 petition filed by your mother on your behalf is current, so you can file an I-485 adjustment of status application, requesting reinstatement of the I-130 petition filed by your mother pursuant to Section 204(L).

As a sidenote, Section 204(L) relief is also available if one’s relative died while the I-130 was pending, not only after the I-130 petition was approved.   Section 204(L) relief therefore is broader than Humanitarian Reinstatement of a petition under 8 CFR Section 205.1, which can only be requested by the principal beneficiary when the petitioner him/herself has died, and after approval of an I-130.

Relief under Section 204(L) is discretionary, and can be denied if factors in support of relief are not presented properly.  It is accordingly recommended that you seek the assistance of an experienced attorney.

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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Darrick V. Tan, Esq. is admitted to practice law in California and Nevada.  Mr. Tan is a graduate of UCLA and Southwestern University School of Law.  He is a member of the Consumers Attorney Association of Los Angeles and is a former member of the Board of Governors of the Philippine American Bar Association. LAW OFFICES OF DARRICK V. TAN, 3580 Wilshire Boulevard, Suite 900, Los Angeles, CA 90010.  Tel:  323-639-0277.  Email: [email protected]

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