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Petition Remains Alive Despite Death of Petitioner or Principal Applicant

Until October of 2009, if either the petitioner or principal applicant dies, the petition also dies. The result is the automatic revocation of the petition. While the US Congress enacted this provision, the Policy Memorandum from the US Citizenship and Immigration Services was only published December 16, 2010.


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Petition Remains Alive Despite Death of Petitioner or Principal Applicant
Posted on January 25, 2011 | United States of America

The policy memorandum seeks to uniformly adjudicate petitions and applications of applicants affected by the October 2009 law. Aditionally, the USCIS made it clear that the policy memorandum "applies to and is binding on all USCIS employees."


Background
Prior to the 2009 law and 2010 memorandum, "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 204(l) of the Immigration and Nationality Act ("Act") "changes this governing law with respect to an alien who is seeking an immigration benefit through a deceased "qualifying relative."
Under a current provision of Title 8, Code of Federal Regulations a principal applicant may request for reinstatement of the petition if the petitioner dies. However, if the principal applicant dies, the derivative beneficiaries cannot pursue their residency applications.
The new law and policy memorandum explains that the new Section 204(l) allows the derivative beneficiaries to have their permanent residency valid and continued even if the principal applicant dies.

Who Will Benefit from this Change?


Any principal or derivative beneficiary of an approved family sponsored, employment-based...to apply for permanent residency despite the death of a qualified relative. A principal applicant is the person named in a petition. A derivative beneficiary is normally the spouse or minor, unmarried children of the principal applicant.

Qualified or Qualifying Relatives Defined
 

  • The petitioner of a family-based immigrant visa petition
  • The principal beneficiary in a family based petition
  • Principal beneficiary in an employment-based petition
  • Petitioner in refugee/asylee relative petition
  • Principal alien admitted as T or U nonimmigrant
  • Principal asylee granted asylum


Adjustment of Status Applicant (Beneficiary of Visa Petition)

  • Must have resided in the US when the qualifying relative died;
  • Continues to reside in the US on the date of the decision on a pending petition or application
  • May have been outside the US but residence was in the United States
  • May be unlawfully present (such as overstaying)



Applicability of INA 204)(l)
Section 204(l) applies to any case adjudicated on or after October 28, 2009 even if the case was filed before October 28, 2009. Motion to reopen may be made. Affidavit of Support still required.

If you need assistance or more information regarding this new law and policy memorandum, you may call the Immigrant Visa Center at (02) 634-8717.

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