SINCE the enactment of Section 204(l) in 2009, USCIS has issued official guidance to implement the provisions of the “Surviving Relatives Law.” USCIS has amended the USCIS’ Adjudicators’ Field Manual (AFM) to provide consistency in adjudications under the Surviving Relatives Law at USCIS offices throughout the Country. USCIS has been taking immediate action on many cases that it had previously held for adjudication in the absence of regulatory guidance to implement Section 204(l).
Section 204(l) was signed into law by the President signed into law in October 2009. The law amends the Immigration & Nationality Act (INA) reversing the longstanding rule that visa petitions filed for relatives are automatically revoked upon the death of the Petitioner. The law was designed to ameliorate the harsh, unfair consequences resulting to thousands of beneficiaries of family and employment-based visa petitions who have been waiting for years for their priority dates to become current, only to have their hopes dashed by the untimely death of the Petitioner or “qualifying relative” before they could obtain their green cards. For decades, the rule was simple: The Petition dies with the Petitioner. The only way to avoid application of that law was through approval of a Request for Humanitarian Reinstatement with the office of the USCIS that originally approved the petition. According to the Surviving Relative Law, the rule is completely reversed: The Petition survives the death of the Petitioner. The only way this rule does not apply is if the USCIS, in its discretion, believes that the revalidation of such a petition would be “against the public interest.” In the vast majority of cases, the Beneficiaries of such petitions are merely innocent victims of long delays in visa availability and the tragic loss of their petitioning relative. The new law removes the additional penalty of losing any opportunity to obtain lawful permanent resident status to these already suffering victims.
The unfairness of the so-called “Widow Penalty” provided much of the reason for the legal change. Under prior law, the surviving spouse of a US Citizen who had petitioned her for a green card could, with limited exceptions, only obtain the green card if the marriage had lasted two years before the US Citizen Petitioner denied. This rule created anomalous and arbitrary results, giving rise to many law suits challenging the fairness of a law that would deny the green card to a widow (even the widow of a US Serviceman killed in Iraq in one famous case) solely because the marriage did not last two years before the Petitioner’s unfortunate death. Section 204(l) removed the requirement that the marriage must have lasted two years, allowing for the widowed beneficiary of a petition filed by a US citizen to obtain a green card as long as the widow did not subsequently remarry and files a petition within two years of the death.
In addition to removing the “Widow Penalty,” Section 204(l) expanded its protections to additional categories of beneficiaries, as long as they were residing in the US on the date the Petitioner passed away and continue to reside in the US, including: Unmarried sons and daughters of Citizens, Spouses and unmarried sons and daughter of green card holders, married sons and daughters of citizens, and brothers and sisters of citizens. Children of such beneficiaries may also be included derivatively if they continue to meet the definition of “child” under the law at the time the priority date becomes current.
Beyond the regular family categories, Section 204(l) also preserves eligibility for derivative beneficiaries of employment-based categories, where the principal Beneficiary has passed away during the process. This rule allows for the spouse and children of an immigrant whose I-140 Petition for Immigrant Worker is pending or has been approved to continue to seek adjustment of status to permanent resident even though the foreign worker under petition passes away. This provision help avoids the extremely unfortunate situation where a family has been residing in the US for many years while awaiting their green cards through the “labor certification” and I-140 process, only to have their children uprooted from school and forced to depart the US following the tragic loss of their parent.
USCIS has made clear that a person need not have been “physically present” in the US on the date the “qualifying relative” passed away to benefit from its provisions; only that the US was the person’s “principal or actual place of residence,” even if they were physically outside the US at the time of death. Also, the memo posits that petitions can be reinstated in cases where the Petitioner died before the law was passed and that substitute sponsors can be used for the purposes of the affidavit of support.
The USCIS has taken a fairly broad view of Section 204(l) applicability, which is in keeping with its “plain language” and clear ameliorative purpose, which has benefitted and continues to benefit thousands of bereft immigrant families in the US.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; Tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.
