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 & Nationality Act (INA). This is part two of the series of articles on this USCIS memorandum.
When the new section of the Act applies?
The new Section of the Act applies to any immigrant visa petition, refugee/asylee relative petition, or application adjudicated on or after October 28, 2009, even if the petition or application was filed before that date. This Section allows the approval of a pending petition or application, despite the death of the qualifying relative, provided the alien seeking the benefit meets the certain requirements as mentioned in our previous article.
The new Section applies to a petition or application adjudicated on or after October 28, 2009, even if the qualifying relative died before October 28, 2009. If a petition or application was denied on or after October 28, 2009, without considering the effect of the new Section, which could have permitted approval, USCIS must, on its own motion, reopen the case for a new decision in light of the new Section.
The Act governs the determination whether an alien “resided” in the United States when the qualifying relative died, and whether the alien continues to reside in the United States. A person’s “residence” is his or her “principal, actual dwelling place in fact, without regard to intent.” If the alien’s “residence” was in the United States at the required times, the alien “resided” here. The statute does not bar an alien, who was actually abroad when the qualifying alien died from proving that the alien still resides in the United States. Also, the new Section of the Act does not require the alien to show that he or she was, or is, residing here lawfully. Execution of a removal order, however, terminates an alien’s residence in the United States.
The Act permits the spouse or child of a principal alien to accompany or follow to join a principal alien. If any one beneficiary of a covered petition meets the residence requirements of the new Section of the Act, then the petition may be approved, despite the death of the qualifying relative, and all the beneficiaries may immigrate to the same extent that would have been permitted if the qualifying relative had not died. But it is not necessary for each beneficiary to meet the residence requirements in order to have the benefit of the new Section.
Action in pending
Provided the alien was residing in the United States when the qualifying relative died, and still resides in the United States, an officer now has authority to approve any immigrant visa petition or refugee/asylee relative petition that was pending when the qualifying relative died if the petition is covered by the new Section of the Act, provided the petition was approvable when filed and still is approvable, apart from the death of the qualifying relative. Therefore, assuming all other requirements for approval of a petition are met, the death of the qualifying relative no longer requires denial of a petition in a case involving an alien who meets the requirements of new INA section 204(l).
The new section does not “limit or waive” any eligibility requirements or bars to approval of a petition or application other than the lack of a qualifying relative due to the qualifying relative’s death. Thus, no other eligibility requirements are changed by the enactment of this new section. For example, a petition to which this new section applies may still be subject to denial under the Act (relating to prior marriage fraud) or any other statutory bar to approval.
An immigrant visa petitioner may withdraw a pending petition at any time before the admission or adjustment of the principal beneficiary. USCIS cannot adjudicate a petition that has been withdrawn. Pursuant to this new Section, whether an employment-based petitioner is able to withdraw the petition and possibly affect the ability of principal beneficiary’s alien widow(er) or children to immigrate on the employment-based visa, depends on when that petitioner is attempting to withdraw the petition. If the principal beneficiary is alive when the employer petitioner requests withdrawal of the petition, then USCIS will honor that request. On the other hand, if the withdrawal is dated after the death of the principal beneficiary, then USCIS will not give effect to the request for withdrawal since the employment-based petitioner no longer has any legal interest in the immigration of the principal beneficiary’s widow(er) or children.
The situation of a family-based petitioner is different. A family-based petitioner must generally assume the affidavit of support requirements for the principal beneficiary’s spouse and children. Thus, unlike employment-based petitioners, the immigration of the derivatives does have an effect on the family-based petitioner. Under this new Section of the Act, the petitioner may certainly continue to seek approval of the petition, after the death of the principal beneficiary, if at least one derivative was residing in the United States when the principal died, and continues to do so. USCIS will presume that the family-based petitioner wants the case to continue to adjudication. But USCIS does not interpret the new Section of the Act as requiring the petitioner to do so. The death of the principal beneficiary does not alter the family-based immigrant visa petitioner’s right to withdraw a petition. If the petitioner chooses to withdraw the petition, USCIS will honor that decision, and refrain from adjudicating the petition.
– To be continued…