Approval of petitions and applications upon death of petitioner or beneficiary -Part I

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Michael Phulwani is a prominent attorney admitted to practice law in New York, New Jersey and India. He practices immigration and nationality laws and visa matters in the USA and abroad. He is a frequent lecturer on immigration laws and co-hosts several TV and radio programs on immigration. In this column, Phulwani will discuss frequent problems relating to immigration legislation and answer questions from our readers. All questions should be forwarded to Michael Phulwani, 888 Maywood Avenue, Maywood, NJ 07607.
By Michael Phulwani

On December 16, 2010, US Citizenship & Immigration Services (USCIS) issued a policy memorandum pertaining to adjudication of petitions and applications after the death of the Qualifying Relative under the Immigra-tion & Nationality Act (INA). This memorandum will be discussed in detail in this and our next few articles.

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. The new section of the INA changes this governing law with respect to an alien who is seeking an immigration benefit through a deceased “qualifying relative.” INA now 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:

– Resided in the United States when the qualifying relative died;

– Continues to reside in the United States on the date of the decision on the pending petition or application; and

– 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 the Act.

USCIS infers that “qualifying relative” means an individual who, immediately before death, was:

– The petitioner in a family-based immigrant visa petition under the IR, F1, F2A, F2B, F3 or F4 preference categories;

-The principal beneficiary in a family-based visa petition case under F1, F2A, F2B, F3 or F4 preference categories;

– The principal beneficiary in an employment-based visa petition case under EB1, EB2, EB3, EB4 or EB5 preference categories;

– The petitioner in a refugee/asylee relative petition;

– The principal alien admitted as a T or U nonimmigrant; or

– The principal asylee, who was granted asylum under the INA.

INA provides that, to avoid public charge inadmissibility, most immediate relatives and family-based immigrants, and some employment-based           im-migrants, must have filed an affidavit of support on  their behalf that meets the requirements of INA. If, after the death of a qualifying relative, a visa petition is approved or not revoked under the new section, then another individual who qualifies as a “substitute sponsor” must submit a Form I-864, Affidavit of Support.

Policy

This policy memorandum 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 would now allow approval of a still-pending petition or application.

Implementation

The Adjudicator’s Field Manual (AFM) is amended as follows:

Approval of pending immigrant visa petitions, T or U extension applications, asylee/ refugee relative petitions, or applications after death of the qualifying relative.

Widow(er)s of citizens: Upon the death of the citizen petitioner, Form I-130 is converted to a widow(er)’s Form I-360. This conversion takes place even if the citizen and alien were married for less than two years when the citizen died.

In the case of a K-1 nonimmigrant, who marries the petitioner within 90 days of admission, the K-1 nonimmigrant (and any K-2 children, who are otherwise eligible), may obtain adjustment of status without the need for Form I-360, just as they would have been eligible for adjustment without Form I-130, if the petitioner had not died.

If an alien was admitted as a K-3 or K-4 nonimmigrant, the Form I-130 filed for the K-3 is converted to a Form I-360 upon the citizen petitioner’s death. The K-4 can then “accompany or follow to join” the K-3 based on that Form I-360.

A widow(er)’s eligibility for adjustment ends if the widow(er) remarries before obtaining LPR status.

A USCIS officer may encounter a case in which a petition or application was approved before October 28, 2009, despite the death of the citizen spouse, who filed the petition. The approval may have occurred because USCIS was unaware of the death, or because the alien persuaded USCIS that the death did not end eligibility. In some circuits, but not all, there were precedents from the relevant courts of appeals supporting approval of an immediate relative spousal Form I-130 after the petitioner’s death. In light of those precedents, and given the intent of the Public Law, USCIS will deem the approval of the petition and the grant of adjustment proper, and will not seek to rescind a grant of adjustment, if the sole basis for doing so is the death of the citizen spouse and the resulting invalidity of the Form I-864 filed by the citizen spouse.

To be continued…

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