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 the concluding part of the series of articles discussing this USCIS memorandum in detail.
Application of the new section to cases adjudicated before October 28, 2009
(i) Denials: The new Section does not, by its terms, require USCIS to reopen or reconsider any decision denying a petition or application, if the denial had already become final before October 28, 2009. For this reason, enactment of the new Section is not a reason for USCIS to reopen or reconsider, on its own motion, any decision that was made before October 28, 2009. Given the intent of the new Section, USCIS has decided to allow an alien to file an untimely motion to reopen a petition, adjustment application, or waiver application that was denied before October 28, 2009, if the new section would now allow approval of a still-pending petition or application. A motion to reopen, rather than a motion to reconsider, would be the proper type of motion, since the alien would need to present new evidence: proof of the relative’s death and proof both that the alien was residing in the United States when the relative died and that the alien continues to reside in the United States. The alien must pay the standard filing fee for each motion, unless the alien qualifies for a fee waiver. If the alien establishes that he or she was residing in the United States when the qualifying relative died, and that he or she continues to reside in the United States, it would be appropriate for USCIS to exercise favorably the discretion to reopen the petition and/or application(s), and to make new decisions in light of the new Section.
Note that an alien, who is present in the United States unlawfully does not accrue unlawful presence, while a properly filed adjustment application is pending. If USCIS grants, under the Section of the Act, a motion to reopen a Form I-485 that was denied, the Form I-485 will, once again, be pending, and is deemed to be pending from the original date of filing. Thus, reopening a Form I-485 under the new Section of the Act will cure any unlawful presence that may have accrued between the original denial and the new decision. The result is that the alien will not have accrued any unlawful presence from the original filing of the Form I-485 until there is a final decision after the reopening of the Form I-485. If the alien is otherwise inadmissible because of unlawful presence accrued before applying for adjustment, a waiver may be available.
(ii) Approvals: A USCIS officer may encounter a case in which a petition or application was approved, before October 28, 2009, despite the death of a qualifying relative. 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. Although some courts of appeals had held that the death of a citizen did not end the eligibility of the citizen’s spouse for classification as an immediate relative, there was no nationwide ruling on this issue. Nor was there any binding precedent concerning relatives other than widow(er)s of citizens. The spousal immediate relative cases, however, could be seen as at least persuasive authority that USCIS could approve other types of visa petitions, despite the petitioner’s death. Given the intent of the new Section, 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 qualifying relative or the resulting invalidity of the Form I-864 filed by the visa petitioner.