Update on CIS Procedures After a Petitioner Dies August 2013

US CIS recently provided an update on what happens when a Petitioner dies before the Beneficiary can apply for an immigrant visa. This update refers to the 204 (l) regulation. It applies to Beneficiaries who are already in the US as tourists or students when the Petitioner dies.

If the petition is pending when the Petitioner dies, there is no need for a separate application process. The Beneficiary just informs USCIS of the death, shows that he or she was in the US at the time of death and has remained in the US since the death of the Petitioner.

If the Petitioner died after the visa petition was approved, then the Beneficiary needs to apply for re-instatement of the approval.

There is no standardized form to apply for 204 (l) benefits. The Beneficiary just submits a copy of the Petitioner’s death certificate and other required proof, along with a cover letter. The only reason for CIS to deny a 204 (l) request is if they think it would not be in the public interest to approve it.

In the past, only widows and widowers of U.S. citizens could continue to apply for a Green Card after the death of their petitioning spouse. The 204(l) regulation addsimmigration survivor benefits to other categories of relatives, including derivative beneficiaries in family-based preferences.

This law is aimed primarily at visa applicants who are already in the US. It is uncertain how easy it will be to apply the law to those still living in Vietnam. No one in Vietnam has applied for a visa under the new law yet. However, for applicants still in Vietnam, this new law replaces the requirements of the Family Sponsor Act and makes it much easier to become eligible for visa processing after the death of “qualifying relative”.

CIS says that “In certain circumstances, a survivor residing outside of the U.S. at the time of the qualifying relative’s death, might be allowed to request “humanitarian reinstatement” if he/she was the beneficiary of an approved petition before the death of the “qualifying relative”. Those seeking immigration survivor benefits under section 204(l) or humanitarian re-instatement are still required to provide an Affidavit of Support (I-864), but one may be obtained from a substitute sponsor.

CIS understands “qualifying relative” can mean EITHER the Petitioner OR the Principal Applicant. In other words, if the Principal Applicant was married or was a single parent, and he or she dies, then the surviving spouse and surviving minor children of the Principal Applicant would still be eligible to apply for immigrant visas.

For applicants still living in Vietnam, Section 204(l) of the Act applies to any immigrant visa petition approved on or after October 28, 2009, even if the petition or application was filed before that date. 

To request humanitarian reinstatement of an approved petition, or of a petition revoked because of the death of the “qualifying relative”, the beneficiary should send a written request for reinstatement to the USCIS service center or field office that approved the petition.

The written request must include a copy of the approval notice for the revoked petition, the death certificate of the petitioner (or other qualifying relative). CIS also needs a Form I-864 from a substitute sponsor and proof of the substitute sponsor’s relationship to the beneficiary.

Family ties in the United States are a major consideration in a “humanitarian reinstatement” request. However, there is no strict requirement for the alien beneficiary to show extreme hardship to the alien, or to relatives already living in the United States.

----------------------------------------------------------------------------------------------------------------------------------------------------------
Q.1. How does a visa applicant apply for reinstatement under section 204(l) if their petition was already approved before the death of their qualifying relative?
A.1. CIS recommends that persons with an approved petition should seek reinstatement by writing a letter to the USCIS office that approved the petition, notwhere the petition was filed. The letter should specify the applicant is seeking 204(l) reinstatement.

---------------------------------------------------------------------------------------------------------------------------------------------------------
Q.2. When a survivor's petition is re-instated, does it retain the priority date of the original I-130 petition?
A.2. An applicant's reinstated petition will retain the original priority date. INA §204(l) requires USCIS to proceed with the applications as if the qualifying relative hasn't died.

----------------------------------------------------------------------------------------------------------------------------------------------------------
Q.3. The Child Status Protection Act (CSPA) says applicants need to apply for a visa within one year after the petition becomes current. If a CSPA applicant applies for reinstatement under section 204(l), does the one year begin when the visa first became available, or from the date that the petition was reinstated?
A.3. CIS says that an individual covered by CSPA before their qualifying relative's death will still be eligible for protection. An applicant who was unable to file for permanent residence because of the death of a qualifying relative will have one year from the date of petition reinstatement to satisfy the one year requirement during which they must seek to apply for a visa.

 
ROBERT MULLINS INTERNATIONAL www.rmiodp.com
Immigration Support Services-Tham Van Di Tru

9070 Bolsa Avenue, Westminster CA 92683 (714) 890-9933 
779 Story Road, Ste. 70, San Jose, CA 95122 (408) 294-3888 
6930 65th St. Ste. #105, Sacramento CA 95823 (916) 393-3388 
Cty Rang Mi: 47 Phung Khac Khoan, Q1, HCM (848) 3914-7638