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 and 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 and Nationality Act (INA). This is part 4 of the series of articles discussing this USCIS memorandum in detail.
Waivers and other related applications
The text of the new Section provides that the new approval authority applies not only to the visa petition, but to an adjustment application and “any related applications.” The grounds of inadmissibility are not waived. But the provision does remove “ineligibility based solely on the lack of a qualifying family relationship” as a basis for denying relief. USCIS has determined, therefore, that the new Section does give USCIS the discretion to grant a waiver or other form of relief from inadmissibility to an alien described in this new Section, even if the qualifying relationship that would have supported the waiver has ended through death.
Note that it is not necessary for the waiver or other relief application to have been pending when the qualifying relative died. The new Section of the Act permits the approval of a waiver or other relief application despite the death of a qualifying relative if:
l a petition or application was pending or approved when the qualifying relative died;
l the alien was residing in the United States when the qualifying relative died; and
l the alien still resides in the United States.
Some waivers require a showing of extreme hardship to a qualifying relative, who must be either a citizen or a permanent resident. Since the legislation intends to have the new Section of the Act extend not only to the approval of the pending petition, but also to any related applications, the fact that the qualifying relative has died will be noted in the decision and deemed to be the functional equivalent of a finding of extreme hardship. Note that the new Section applies in this context only when, the hardship being claimed by the surviving beneficiary, would have been on account of claimed extreme hardship that would have been suffered by the qualifying relative were he or she still alive.
The preceding paragraph assumes that the qualifying relative was already a citizen or permanent resident at the time of death. If the qualifying relative was not already a citizen or permanent resident, then the qualifying relative’s death does not make the alien eligible for a waiver that would not have been available if the qualifying relative had not died. If the qualifying relative was not a citizen or permanent resident, then the alien may not be able to obtain a waiver of inadmissibility unless there is yet another individual, who has the requisite status and family relationship to meet the requirements of the waiver provision, or the waiver provision does not require a family relationship and/or extreme hardship.
Discretionary denial under the new section 204(l)
The new Section gives USCIS discretion to deny a petition or application that may now be approved despite the qualifying relative’s death, if USCIS finds, as a matter of discretion, “that approval would not be in the public interest.” This exercise of discretion, moreover, is “unreviewable.”
USCIS officers will not, routinely, use this discretionary authority to deny a visa petition that may now be approved, despite the death of the qualifying relative. In a visa petition proceeding that is not subject to the new Section of the Act or some other approval bar, the overriding issue is simply whether the beneficiary qualifies for the visa classification sought. Inadmissibility, for example, does not warrant denial of a visa petition. The new Section now provides that an alien described in this Section can still qualify for the benefit sought, despite the qualifying relative’s death. Thus, only truly compelling discretionary factors should be cited as a basis to deny a visa petition under the new Section, on the ground “that approval would not be in the public interest.” Before denying a visa petition on this basis, the USCIS officer must consult with the appropriate Headquarters Directorate, through appropriate channels.
Under DHS regulations, approved immediate-relative and family-based petitions filed under the Act are automatically revoked upon the death of the petitioner or the beneficiary. Since approval under the new Section is a matter of agency discretion, enactment of the new Section does not supersede this long-standing regulation. But the regulations also give USCIS discretion to decide not to revoke the approval for “humanitarian reasons.” In light of the new Section, it would generally be appropriate to reinstate the approval of an immediate-relative or family-based petition if the alien was residing in the United States when the petitioner dies and if the alien continues to reside in the United States. In those circumstances, reinstating the approval of an immediaterelative or family-based petition is appropriate even if the death that resulted in the automatic revocation occurred before October 28, 2009.
The fact that USCIS already denied reinstatement before October 28, 2009, does not preclude a new request.
Under DHS regulations, approved employment-based petitions filed under INA are automatically revoked upon the death of the petitioner or the beneficiary. There is no comparable regulatory provision that allows for the reinstatement of the approval of employment-based petitions based upon “humanitarian reasons.” Similarly, the DHS regulation does not provide for reinstatement of approval of an immediate-relative or family-based visa petition if it is the principal beneficiary, rather than the petitioner, who has died. In light of the new Section, however, USCIS officers may act favorably on requests to reinstate approvals under the Act.
Regulations specify the information that the beneficiary should submit with the written request for reinstatement and also specifies that the written request should be submitted to the USCIS service center or field office that approved the petition except that, if the beneficiary has properly filed an application for adjustment of status with USCIS, the request should be submitted to the USCIS office with jurisdiction over the adjustment application.
— To be concluded…