Approval of petitions and applications upon death of petitioner or beneficiary – Part III

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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 3 of the series of articles discussing this USCIS memorandum in detail.

Action in pending adjustment cases:

General: An officer also has authority, now, to approve an adjustment of status application that was pending when the qualifying relative died, if the related visa petition is approved under the new Section, or if a pre-death approval is reinstated. In the adjustment of status context, the alien must have been eligible to apply for adjustment of status at the time that application was filed.

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 adjustment eligibility requirements are changed by the enactment of this new section. For example, the death of the qualifying relative does not relieve the alien, who is seeking adjustment under section 245(a) of the Act of the need to qualify for adjustment of status under section 245(a) of the Act. That is, unless the alien qualifies under section 245(i) of the Act, the alien must still establish a lawful inspection and admission or parole and is otherwise eligible for adjustment. An alien may not apply for adjustment before an immigrant visa is “immediately available.” How-ever, if there was a properly filed adjustment application pending and the beneficiary or the derivative beneficiary was eligible to adjust, approval or reinstatement of approval of a visa petition under the new Section will preserve any eligibility for adjustment that existed immediately before the qualifying relative died.

Similarly, the applicant must be admissible, or must obtain any available waiver of inadmissibility. This new Section of the Act, by its terms, does not automatically waive any ground of inadmissibility that may apply to an adjustment applicant. Thus, an adjustment applicant whose case is governed by the new Section of the Act may need to apply for a waiver or other relief from inadmissibility.

Because the new Section does not waive the standard eligibility requirements for applying for adjustment, an alien who did not already have an adjustment application pending, when the qualifying relative died, may not be able to seek adjustment in every case in which a pending petition was approved, or an approved petition was reinstated, under the new Section of the Act. An alien whose petition has been approved or reinstated under the new Section of the Act, but who is not eligible to adjust status, would not be precluded from applying for an immigrant visa a consular post abroad. The approval of a visa petition under the new Section does not give an alien who is not eligible for adjustment of status, and who is not in some other lawful immigration status, a right to remain in the United States while awaiting the availability of an immigrant visa.

The death of the qualifying relative also does not relieve the alien of the need to have a valid and enforceable Form    I-864, Affidavit of Support,     if required by the Act. If the alien is required to have a Form I-864, and the visa petition is approved under the new Section, a substitute sponsor will need to submit a Form I-864. A substitute sponsor is needed even if the deceased petitioner had filed a Form I-864. A Form I-864 is not a “petition” nor is it an application or “related application.” The Form I-864 is        a contract between the sponsor and the government, submitted as evidence in support of a visa or adjustment application. DHS regulations clearly provide, moreover, that a sponsor’s obligations under a Form I-864 do not take force until the alien actually immigrates. It is the grant of LPR status that is the government’s “acceptance” of the sponsor’s offer to               be bound by the Form I-864. The sponsor’s obligations terminate with the sponsor’s death.

Adjustment not subject to conditions under section 216 of the Act: An alien, who acquires LPR status based on a marriage entered into less than 24 months before the alien acquires LPR status obtains LPR status on a conditional basis under section 216 of the Act. Generally, the alien must then petition, two    years later, for removal of the conditions. If the qualifying marriage has already ended by death, however, a condition for removal of the conditions already exists. For this reason, if a Form I-130 and Form       I-485 are approved under this new Section of the Act, the alien’s LPR status will not       be subject to the conditions under section 216 of the Act. The alien, therefore, will not need to file Form I-751.

Removal of conditions under section 216A of the Act: An alien, who acquires LPR status based on a qualifying investment under the Act, does so on a conditional basis under section 216A of the Act. If the derivative beneficiary of a Form I-526 obtains approval of the Form I-526 and Form I-485 under the new Section of the Act, the alien remains subject to the conditions imposed by section 216A of the Act. The death of the Form I-526 petitioner does not, by itself, provide a basis for removing the section 216A conditions. Rather, the derivative beneficiaries must still file, two years later, a Form I-829 and show that the requirements for removal of the conditions have been met.

— To be continued …

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