Immigration Practice Pointers, 2010-11 Ed. - AILA webCLE

Copyright © 2011, American Immigration Lawyers Association. All rights reserved. Reprinted, with permission, from AILA’s 

Immigration Practice Pointers, (2011–12 Edition), available from AILA Publications, 1-800-982-2839, www.ailapubs.org. 

SURVIVING RELATIVES: NEW WAYS TO 

RESUSCITATE A DEAD PETITION OR APPLICATION 

by Barbara L. Bower, Christie Popp, and Brent Renison * 

This article concerns new solutions, under recently enacted legislation and pursuant to a class-action 

settlement, to some of the problems encountered by surviving relatives following the death of the person who 

had provided the basis for immigration benefits. On October 28, 2009, President Obama signed into law two 

provisions directed toward surviving relatives: (1) elimination of the two-year marriage requirement for selfpetitioning 

widows and widowers [widow(er)s] of U.S. citizens; and (2) an entirely new INA section, Section 

204(l), which allows many petitions and other immigration benefits to remain viable after the death of the 

qualifying relative. 1 U.S. Citizenship and Immigration Services issued a Memorandum dated December 2, 

2009, by Donald Neufeld, Associate Director, Service Center Operations Directorate (Neufeld Memo), that 

provided guidance on the change to widow(er)s of U.S. citizens, and issued a policy memorandum dated 

December 16, 2010, that provided guidance on implementation of the new INA §204(l) provisions (Policy 

Memo). 2 

A few key concepts may assist practitioners in sorting through the provisions that are relevant to an 

individual client’s case: 

• Widow(er)s of U.S. citizens are treated differently than other surviving relatives, primarily because there 

is a right to self-petition in addition to having a previously filed petition remain valid. Congress eliminated 

the provision requiring a marriage of two years for widow(er)s of U.S. citizens to self petition, and 

litigation and a class action settlement established other rights for this class of immigrants; 

• Humanitarian Reinstatement, which has for many years served as the only immigration tool for most 

surviving relatives, has been partially replaced by the more liberal provisions of 204(l) and the removal of 

the two-year marriage requirement for widow(er)s of U.S. citizens. Nevertheless, it remains an option 

available under the regulations for cases not covered by the widow(er) or 204(l) provisions; 

* Barbara L. Bower practices immigration law with Sherrard, German & Kelly, P.C. in Pittsburgh. Her clients range from 

large publicly traded multinational corporations to small start-up companies and private individuals. She is a past chair for the 

AILA Pittsburgh Chapter and has served on numerous national AILA committees. She chaired the 2000 AILA Annual 

Conference Committee. She has been selected for inclusion in The Best Lawyers in America for immigration. 

Christie Popp is the director of the Immigrants’ and Language Rights Center of Indiana Legal Services. Prior to becoming 

the director, she worked as a staff attorney for the organization. She handles a variety of cases for low-income immigrants and 

their families, including cases related to family-based immigration, deportation defense, U visas, VAWA-related immigration 

benefits, and naturalization. She received a J.D. from Vermont Law School in 2005 and earned a B.A. in Latin American 

Studies from Indiana University in 2001. 

Brent Renison is top listed in Best Lawyers in America, is ranked as a leading individual by London-based Chambers and 

Partners, and is named by Law & Politics as a “Super Lawyer.” He received the Ninth Annual Daniel Levy Memorial Award 

for Outstanding Achievement in Immigration Law in Washington, DC in 2010. In 2007, he was presented with an AILA 

Presidential Award for Outstanding Achievement in Mentoring and Litigation on behalf of immigrant rights and with the 

Gerald H. Robinson Excellence in Advocacy Award by the AILA Oregon Chapter. He worked for over five years to end the 

“widow penalty” through litigation and legislative advocacy. 

1 INA §201(b)(2)(A)(i) (8 U.S.C. §1151(b)(2)(A)(i)); INA §204(l) (8 U.S.C. §1154(l)), as amended by §568(c) and §568(d) of 

the DHS Appropriations Act, 2010, Pub. L. No. 111-83, 123 Stat. 2142, 2187-88 (2009). Note that new INA §204(l) follows 

§204(k) alphabetically, and the subsection is ordered by the letter “l” as in “letter” as opposed to a numeral 1 or I. 

2 Memorandum, Neufeld, Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children 

(Revised), Dec. 2, 2009, published on AILA InfoNet Doc. No. 09121430 (posted Dec. 14, 2009); Policy Memorandum, 

Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration 

and Nationality Act, PM-602-0017, Dec. 16, 2010, published on AILA InfoNet Doc. No. 11011061 (posted Jan. 10, 2011). 

110 

Copyright © 2011 American Immigration Lawyers Association

SURVIVING RELATIVES: NEW WAYS TO RESUSCITATE A DEAD PETITION OR APPLICATION 111 

• Surviving Relative Consideration Under 204(l) represents a new form of relief for surviving relatives, 

some of whom could previously only rely upon humanitarian reinstatement, and many of whom simply 

had no relief at all. The requirements of 204(l) relief center around two main elements: 

• Residence in the United States at the time of the death, and continuing residence in the United States; 

and 

• A Previously Filed Petition such that at the time of the death the surviving relative was the beneficiary or 

derivative beneficiary of a petition. This is in contrast to the self-petition rights unique to widow(er)s of 

U.S. citizens. 

Figure 1. 

As shown above in Figure 1, widow(er)s are subject to special rules, including the statutory right of selfpetitioning. 

Widow(er)s married more than two years are subject to different rules than those married less 

than two years, but only for pre-October 28, 2009 deaths. Additionally, because of the Hootkins v. Napolitano 

class action, 3 cases involving petitions filed in the Ninth Circuit, or where the beneficiary or petitioner 

resided in the Ninth Circuit at the time of the death, are subject to special rules in accordance with the 

settlement of that lawsuit. If the case does not involve a widow(er) of a U.S. citizen, it may be covered by 

new INA §204(l), as shown below in Figure 2. 

3 Hootkins v. Napolitano, 645 F. Supp. 2d 856 (C.D. Cal. 2009) (court filings and rulings, including the settlement agreement 

reached Apr. 5, 2010, are available at www.ssad.org/litigation/classaction.html). 


112 IMMIGRATION PRACTICE POINTERS, 2011–12 ED. 

Figure 2. 

Figure 2 incorporates the statutory language of new INA §204(l) and the interpretation given to it by U.S. 

Citizenship and Immigration Services (USCIS) through the Policy Memo. As with any simplified construct, it 

is provided only as an aid to a more thorough analysis of an individual case. One should not rely on Figure 2 

alone to analyze eligibility. Additionally, there are a number of areas that are either not clear as of this writing 

or are the subject of disagreement between the USCIS interpretation and AILA’s membership. USCIS issued 

a Draft Policy Memorandum on May 17, 2010 4 , and AILA responded with comments. 5 

4 Draft Policy Memorandum, May 17, 2010, published on AILA InfoNet Doc. No. 10051767 (posted May 17, 2010). 

5 AILA Comment on USCIS Draft Policy Memorandum Regarding 204(l), published on AILA InfoNet Doc. No. 10060363 

(posted June 3, 2010). 



Remarriage 

The clear statutory language of §201(b)(2)(A)(i) covering self-petitioning widow(er)s of U.S. citizens bars 

self-petitioning eligibility for widow(er)s who remarry. In response to the Draft Policy Memo, however, 

AILA responded that §204(l) nevertheless provides relief to those who remarry: 

A widow(er) whose U.S. citizen spouse filed an I-130 petition before dying, and who remarries prior to 

being admitted to lawful permanent resident status, still qualifies as an “alien described” in INA 

§204(l)(2)(A) because the alien, “immediately prior to the death of his or her qualifying relative, was—(A) 

the beneficiary of a pending or approved petition for classification as an immediate relative (as described 

in section 201(b)(2)(A)(i)).” INA §204(l)(2)(A). By fixing the point of eligibility before the death, the 

statute clearly contemplates eligibility for those who were spouses of U.S. citizens immediately prior to 

the death of the qualifying relative. The statute does not require the widow(er) to continue to be the spouse 

of a U.S. citizen; only that he or she “was” an immediate relative at the time of death, and was the 

beneficiary of a petition.” 6 

This argument is further strengthened by the language of §204(l)(1), which requires that the petition be 

adjudicated “based upon the family relationship described in paragraph (2),” because that family relationship 

is described in terms fixing the relationship “immediately prior to the death.” USCIS bases its contrary 

position only upon the remarriage bar contained in §201(b)(2)(A)(i). 7 This statute, however, does not pertain 

to widow(er)s of lawful permanent residents (LPRs) in the 2A category, and it cannot be reconciled with the 

clear language of §204(l). This is an area, therefore, where an appeal to the BIA or litigation may find fertile 

ground. 

Affidavit of Support 

Another area of concern is in the area of the I-864 Affidavit of Support. USCIS takes the position that the 

petitioner’s I-864 is no longer valid. 8 In order to be admissible, therefore, a survivor must either show 

exemption from the I-864 requirement or obtain an I-864 from a “substitute sponsor” who must be related to 

the applicant in one of the ways described in §213A(f)(5). 9 This may be impossible in cases where the 

survivor does not have one of the relatives listed. The substitute sponsor requirement is absolute, according to 

USCIS, and neither the alien’s own funds nor joint sponsors can cure the absence of a substitute sponsor. 

AILA previously commented that in cases where the petitioner (now deceased) executed an I-864 prior to the 

death, the affidavit of support requirement should be deemed to have been met because it was a related 

application. 10 USCIS disagreed, stating that the I-864 is neither a petition, nor an application, nor a related 

application. 11 Because there will undoubtedly be survivors who qualify for §204(l), save for lack of a 

qualifying substitute sponsor, it appears that litigation may be necessary to advance survivors’ rights in this 

area. 

Discretion 

The Policy Memo lacks the necessary clarity on the issue of discretion, which could lead to erroneous 

denials. Specifically, §204(l) does authorize the agency to withhold approval where the secretary of the 

Department of Homeland Security determines that “approval would not be in the public interest.” 12 Such 

discretion is unreviewable. 13 According to the Policy Memo, however, discretionary “public interest” denials 

6 Id., p. 3. 

7 Policy Memo, p. 3. 


9 Relatives include, “spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, sonin-law, 

daughter-in-law, sister-in-law, brother-in-law, grandparent or grandchild of a sponsored alien or a legal guardian of a 

sponsored alien…” INA §213A(f)(5) 

10 AILA Comment, p. 10–11. 

11 Policy Memo, p. 9. 

12 INA §204(l)(1). 

13 Id. 


114 IMMIGRATION PRACTICE POINTERS, 2011–12 ED. 

should not be routinely used, and a consultation with headquarters is required prior to denying a visa petition 

on that basis. 14 

The Policy Memo notes that traditional discretionary factors may still be used to deny a case, without 

specifying under which situations those may be appropriate. Nevertheless, because visa petition proceedings 

are nondiscretionary by nature, one can make the argument that only a “public interest” denial subject to the 

consultation requirement would be proper. As for adjustment of status or waiver applications, those may still 

be denied using traditional discretionary factors. Because §204(l) does not permit a denial based solely on the 

lack of the qualifying family relationship, 15 however, a discretionary denial that is based on the death of the 

qualifying relative should be reviewed for appeal. 

Humanitarian Reinstatement 

In cases involving a petition that had been approved prior to the death of the petitioner, USCIS takes the 

position that a kind of hybrid type of humanitarian reinstatement is to be applied. 16 This treatment runs 

contrary to the plain language of the statute, and it elevates the old humanitarian reinstatement regulations 

above the level of the statute. 17 The guidance is also confusing in that it explains that discretion should be 

“generally appropriate” in cases covered under §204(l). 18 In light of the fact that, outside “public interest” 

denials, visa petition adjudications are nondiscretionary, this guidance is at odds with the statute and accepted 

adjudicatory standards. Additionally, it appears to make beneficiaries of approved petitions more vulnerable 

than those of pending petitions. 

U and T Visa Considerations 

There is some concern that §204(l) may not provide any greater protection to U and T nonimmigrants than 

was already granted by the statute, regulations, and current USCIS policy. For example, the guidance states 

that “if the surviving relative already had status as a T or U nonimmigrant derivative at the time of death of 

the qualifying relative, the surviving relative may apply for adjustment of status.” This was already granted 

by the U adjustment regulations and the policy of USCIS, which considers U derivatives to be separate from 

the principals when it comes time to adjust. 

In addition, §204(l) leaves several significant groups out in the cold; for example, an applicant for 

derivative U nonimmigrant status who resided in the United States. If that applicant traveled abroad while the 

U application was pending (before it was approved), and the principal died before the derivative could return, 

the derivative would not benefit from 204(l) even though he or she resided in the United States and even 

though the U status had been approved. The statute requires that the U nonimmigrant be admitted in that 

status before benefiting from 204(l). If the derivative was abroad when the U status was approved, he was not 

admitted before the principal died. 

The second large group of individuals who cannot benefit from 204(l) are family members of U principals 

who never hold U status. Under INA §245(m) a family member can adjust his or her status or obtain an 

immigrant visa if such a grant is necessary “to avoid extreme hardship.” An alien who might otherwise be the 

beneficiary of an adjustment of status under this section cannot obtain status if the principal dies because he 

or she has not held U nonimmigrant status before the principal died. 

The third group of individuals who might be harmed by this section are derivatives who have aged out. 

USCIS is currently considering guidance on how to deal with derivative children who age out (reach the age 


15 DHS Appropriations Act for FY 2010, Pub. L. No. 111-83, Title V, §568(d)(2), 123 Stat. 2142 (Oct. 28, 2009), provides: 

“(2) Construction. Nothing in the amendment made by paragraph (1) may be construed to limit or waive any ground of 

removal, basis for denial of petition or application, or other criteria for adjudicating petitions or applications as otherwise 

provided under the immigration laws of the United States other than ineligibility based solely on the lack of a qualifying family 

relationship as specifically provided by such amendment.” 

16 Policy Memo, pp. 12–13; p. 15. 

17 The Humanitarian Reinstatement Regulations can be found at 8 CFR §205.1(a)(3)(i)(C). The Adjudicator’s Field Manual 

deals with the issue at AFM §21.2(h)(1)(C), as amended by the Policy Memo. 

18 Policy Memo, pp. 12–13; p. 15. 



of 21). It has previously stated that derivative children will age out and lose their status at 21. For this reason, 

recently issued U visas are being granted only until the day that the derivative turns 21, even if that is less 

time in U status than the principal will have. Thus, only those derivative children who obtain U status by age 

18 will have the requisite time in U status (three years) to adjust on their own. The Vermont Service Center is 

holding back the older applications of derivative children who turned 21 before the principal’s status was 

approved, rather than denying them, pending the forthcoming guidance. For those derivatives whose 

applications are still pending because they have already aged out, the question is open as to whether they 

would benefit from INA §204(l). If the principal dies, the language of the statute would not allow a derivative 

to obtain status because the derivative must have already held such status at the time that the principal died. 


U.S. Department of Homeland Security 

20 Massachusetts Ave., NW 

Washington. DC 20529 

U.S. Citizenship 

and Immigration 

Services 

Interoffice Memorandum 

HQDOMO 70/6.1.I-P 

70/6.1.3-P 

AFMUpdate ADIO-09 

To: 

Executive Leadership 

From: Donald Neufeld n .. 

Acting Associate ~r 

Domestic Operations Directorate 

J~ri ScialaMf.( ./ . 

11 Associat . .- 

II Refug, urn, and International -erations Directorate 

~ /'YY/ 

Pearl Chang 

Acting Chief L~73- 

Office ofPolicy and Strategy 

Date: DEC - 2 2009 

r 

SUBJECT: 

Additional Guidance Regarding Surviving Spouses ofDeceased U.S. Citizens and 

their Children (REVISED) 

Effect ofFY2010 DRS Appropriations Act on eligibility to immigrate after death 

ofvisa petitioner 

Revisions to Adjudicator's Field Manual (AFM) Chapter(s) 21.2(a)(4) and 

(h)(l)(C) 

(AFM Update AD10-09) 

I. Purpose 

This memorandum supersedes an earlier memorandum on this subject, dated November 13, 

2009, and provides updated guidance to U.S. Citizenship and Immigration Services (USCIS) 

field offices and service centers regarding the processing ofForms 1-130, petitions for alien 

relative, and 1-485, application to register permanent residence or adjust status, filed by surviving 

spouses ofdeceased U.S. citizens and the qualifying children ofthe surviving spouses. This new 

guidance is based on the enactment ofsection 568(c) ofthe Department ofRomeland Security 

Appropriations Act, 2010, Pub. L. No. 111-83, 123 Stat. 4142,4186 (2009), which provides 

www.uscis.gov 

AILA InfoNet Doc. No. 09121430. (Posted on 12/14/09).

SUBJECT: Additional Guidance Regarding Surviving Spouses of 

Deceased U.S. Citizens and their Children (FY2010 DHS Appropriations Act) 

AFM Update 10-09 

Page 2 

relief for these aliens. Section 568(c) entered into force on October 28,2009, the date of 

enactment. 

Sections 568(d) and (e) ofthe FY2010 DHS Appropriations Act, which provide relief for aliens 

who are surviving beneficiaries ofcertain pending or approved petitions filed by certain 

qualifying categories ofnoncitizens, will be addressed in a separate memorandum. 

II. Background 

A. Prior Policy and Related Litigation 

For many years, U.S. immigration policy has been that a Form 1-130 could not be approved ifthe 

petitioner died while the Form 1-130 was pending. See Matter o/Sano, 19 I&N Dec. 299 (BIA 

1985); Matter o/Varela, 13 I&N Dec. 453 (BIA 1970). As far back as 1938, our immigration 

regulations have provided for the revocation ofthe approval ofa visa petition upon the 

petitioner's death. More recently, the regulations, while maintaining that general policy, have 

provided for discretion, for "humanitarian reasons," to reinstate the approval. 8 C.F.R. § 

205. I(a)(3)(i)(C)(2). Also, since 2006,8 C.F.R. § 204.2(i)(1)(iv) and 205. 1(a)(3)(i)(C)(1) have 

provided that the automatic revocation provision does not apply to a spousal immediate relative 

visa petition, ifthe deceased petitioner and the alien widow(er) had been married at least two 

years when the petitioner died. 

Over the past several years, widow(er)s ofcitizens who had died before the second anniversary 

ofthe underlying marriages have challenged this long-standing policy as being inconsistent with 

the statute. The federal courts ofappeals have split on the legal issue. Compare Robinson v. 

Napolitano, 554 F.3d 358 (3d Cir. 2009) (sustaining agency view that petitioner's death while a 

Form 1-130 is pending ends the beneficiary's eligibility); petition/or cert.jiled, No. 09- 94 (U.S. 

filed July 23,2009), with Taing v. Napolitano, 567 F.3d 19 (1st Cir. 2009) (holding agency 

policy violative ofstatute); Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. 2009) (same); and 

Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006) (same). The issue has engendered much 

litigation before the federal district courts in recent months, with most courts ruling against the 

agency. Among the unfavorable decisions is. the class action ruling in Hootkins v. Napolitano, 

_ F. Supp. 2d _,2009 WL 2222839 (C.D. Cal. Apr. 28, 2009), which is on appeal to the 

Ninth Circuit Court ofAppeals. Other cases are pending in district courts throughout the United 

States. 

B. Section 568(c) of FY2010 DHS Appropriations Act 

Congress, however, recently acted to resolve the issue. On October 28,2009, the President 

signed into law the FY2010 DHS Appropriations Act. Section 568(c) ofthe new law amends the 

second sentence in section 201 (b)(2)(A)(i) ofthe INA so that, for a widow(er) ofa citizen to 

qualify as an immediate relative, it is no longer necessary for the couple to have been married at 

least two years when the citizen died. The second sentence ofsection 201 (b)(2)(A)(i) now reads, 





Page 3 

In the case ofan alien who was the spouse ofa citizen ofthe United States and 

was not legally separated from the citizen at the time ofthe citizen's death, the 

alien (and each child ofthe alien) shall be considered, for purposes ofthis 

subsection, to remain an immediate relative after the date ofthe citizen's death 

but only ifthe spouse files a petition under [section 204(a)(1)(A)(ii) ofthe INA] 

within 2 years after such date and only until the date the spouse remarries. 

When a widow(er) qualifies as an immediate relative under the second sentence in section 

201 (b)(2)(A)(i) ofthe INA, his or her children, as defined in sections 101(b)(1) and 20l(f) ofthe 

INA, also qualify. The amendment made by section 568(c) applies equally to aliens abroad who 

are seeking immigrant visas and aliens in the United States who are seeking adjustment ofstatus. 

The amendment applies to any alien whose spouse died before October 28,2009, and who had a 

Form 1-130 pending on October 28,2009. Ifno Form 1-130 was pending, then an alien whose 

U.S. citizen spouse died before October 28,2009, and before the second anniversary oftheir 

marriage, may file a visa petition under section 204(a)(l)(A)(ii) ofthe INA so long as (a) the 

alien has not remarried, and (b) the petition is filed no later than October 28, 2011. 

Section 568(c) relates only to the impact ofthe citizen's death on the alien's eligibility for 

classification as an immediate relative. All other requirements for approval ofa visa petition 

remain in force. In particular, the alien must still establish that he or she was the citizen's legal 

spouse, and that the marriage was a bona fide marriage and not an arrangement solely to confer 

immigration benefits on the alien. Ifthe alien was in removal proceedings at the time ofthe 

marriage, the "clear and convincing evidence" standard in section 245(e)(3) ofthe INA will still 

apply to the adjudication ofthe visa petition. Ifthe necessary visa petition is approved, the alien 

may then seek an immigrant visa or adjustment ofstatus. The alien must still establish that he or 

she is admissible as an immigrant and, in an adjustment case, that he or she meets all other 

adjustment eligibility requirements and merits a favorable exercise ofdiscretion. 

In light ofthis new legislation, the policy guidance stated in the November 8, 2007, 

memorandum entitled "Effect ofForm 1-130 Petitioner's Death on Authority to Approve the 

Form 1-130" (AFMUpdate AD08-04) is obsolete. This memorandum amends the Adjudicator's 

Field Manual to remove the material added in that earlier memorandum. 

III. Policy Guidance and AFM Update 

AFMUpdate 

1. Chapter 21.2 ofthe AFMentitled "Factors Common to the Adjudication ofAll Relative Visa 

Petitions" is amended by 

a. Removing chapter 2l.2(a)(4) 

b. Removing the Note at the end ofchapter 21.2(h)(1)(C). 





Page 4 

A. Widow(er)s with pending cases 

Section 568(c)(2)(A) ofthe FY2010 DRS Appropriations Act makes the amendment to the 

second sentence in INA section 201 (b)(2)(A)(i) applicable to any visa petition or adjustment 

application "pending on or after the date ofenactment." As noted, the date ofenactment is 

October 28,2009. 

1. Reopening ofpending Form 1-130 cases 

For purposes ofthis amendment, a Form 1-130 will be deemed "pending" on October 282009, if 

the deceased citizen had filed a Form 1-130 on or before that date but: 

• USCIS has not adjudicated the Form 1-130; 

• USCIS denied the Form 1-130, but USCIS granted a motion to reopen or reconsider, so 

that the Form 1-130 is, again, pending; 

• USCIS denied the Form 1-130, but has not yet ruled on a motion to reopen or reconsider; 

• USCIS denied the Form 1-130, but the alien's appeal from that decision is pending before 

the Board ofimmigration Appeals (BIA) or the period for appeal ofthe adverse USCIS 

decision to the BIA had not yet expired; or 

• The USCIS or BIA decision denying the Form 1-130 is the subject ofpending litigation 

before a federal court (including cases in which the district court issued a decision before 

October 28,2009, but the appeals period established by law had not yet expired). 

Under 8 C.F.R. § 204.2(i), a citizen's spousal Form 1-130 is automatically converted to a 

widow(er)'s Form 1-360 if, on the date ofthe citizen's death, the beneficiary qualifies as a 

widow(er) under the second sentence in section 20 1(b)(2)(A)(i). Under section 568(c) ofthe 

FY2010 DRS Appropriations Act, these aliens now qualify under the second sentence. Thus, 

any Form 1-130 that is "pending" as described in the preceding paragraph will be deemed to be, 

and adjudicated as, a widow(er)'s Form 1-360. 

In any Form 1-130 case in which a motion to reopen or for reconsideration was filed, but not 

acted on, USCIS will grant the motion and make a new decision in light ofsection 568(c) ofthe 

FY20 I0 DRS Appropriations Act. 

Any Form 1-130 that is the subject oflitigation in any federal court on the issue ofthe effect of 

the petitioner's death is, as ofthe date ofthis memorandum, reopened for a new decision in light 

ofsection 568(c) ofthe FY201 0 DRS Appropriations Act. The beneficiary need not file a 

separate motion. Nor does it matter, for purposes ofreopening the Form 1-130, whether the 

beneficiary is currently in the United States or abroad. Ifthe decision denying or terminating 

action on the Form 1-130 was pending in any court on October 28, 2009, the decision is now 



Deceased U.S. Citizens and their Children (FY201O DHS Appropriations Act) 


Page 5 

reopened. USCIS will therefore make a new decision in light ofsection 568(c) ofthe FY20 I0 

DHS Appropriations Act. 

Cases challenging the denial ofa spousal immediate relative Form 1-130 based on the 

petitioner's death have been filed in district courts throughout the United States. USCIS officers 

must consult with the appropriate regional or service center counsel to identify those cases that 

are the subject oflitigation that was pending on October 28,2009. Once a case is identified as 

subject to reopening under this memorandum, the USCIS officer will notify the alien in writing 

that the Form 1-130 is reopened in light ofsection 568(c) ofthe FY2010 DHS Appropriations 

Act, and will be readjudicated as a Form 1-360. 

Ifit is determined that a Form 1-130 had been filed but was not "pending" on October 28,2009, 

because a USCIS decision denying the Form 1-130 had become final before October 28, 2009 

(and no administrative appeal or civil action challenging the denial was pending on October 28, 

2009), please refer to part III(B) ofthis memorandum. 

2. Reopening ofpending Form /-485 cases 

Section 568(c)(2)(A) ofthe FY2010 DHS Appropriations Act also makes the amendment 

applicable to any Form 1-485 that was pending on the date ofenactment. A Form 1-485 is 

deemed "pending" on the date ofenactment ifit was filed before the deceased citizen's death 

but: 

• USCIS has not adjudicated the Form 1-485 

• USCIS denied the Form 1-485, but USCIS granted a motion to reopen or reconsider, so 

that the Form 1-485 is, again, pending 

• USCIS denied the Form 1-485, but has not yet ruled on a motion to reopen or reconsider; 

• The Form 1-485 is the subject oflitigation before a federal court (including cases in 

which the district court issued a decision before October 28, 2009, but the appeals period 

established by law had not yet expired). 

With this guidance memo, USCIS also reopens, without the need for a formal motion, any Form 

1-485 that is the subject oflitigation on this issue in any federal court, ifUSCIS still has 

jurisdiction to act on the Form 1-485. As with the reopening ofthe related Form 1-130, the 

USCIS officer will notify the applicant in writing that the Form 1-485 is reopened in light of 

section 568(c) ofthe FY2010 DHS Appropriations Act. 

In the case ofa widow(er) who entered the United States as a K-l nonimmigrant, and filed a 

Form 1-485 after marrying the deceased citizen who had filed the Form 1-129F, ordinarily there 

will not be a Form 1-130. Ifthe Form 1-485 is still "pending" as described in this memo, and 

USCIS still has jurisdiction to act on it, the Form 1-485 will also be reopened for a new decision 

in light ofsection 568(c) ofthe FY2010 DHS Appropriations Act, without the need for a formal 



Deceased U.S. Citizens and their Children (FY201 0 DHS Appropriations Act) 


Page 6 

motion. Since no Form 1-130 is required for a K-I nonimmigrant to seek adjustment after 

marrying the K petitioner within the period specified by statute, the K-1 nonimmigrant will also 

be deemed the beneficiary ofa Form 1-360 ifthe K-1 nonimmigrant now qualifies as a 

widow(er). The K-1 nonimmigrant still may not adjust on any basis other than the K-1 

nonimmigrant's having married the citizen petitioner who filed the Form 1-129F. 

Some aliens may have been placed into removal proceeding after USCIS denied their Forms 1 

485. Except for "arriving aliens," this factor would mean that USCIS no longer has jurisdiction 

to adjudicate the Form 1-485. 8 C.F.R. § 245.2(a)(1) and 1245.2(a)(1). USCIS would have 

jurisdiction to adjudicate the Form 1-485 only ifthe Executive Office for Immigration Review 

(EOIR) terminated the removal proceeding. Whether to support or oppose terminating a removal 

proceeding is a matter for U.S. Immigration and Customs Enforcement to decide, not USCIS. If 

a USCIS office reopens a Form 1-130 involving an alien in removal proceedings, the USCIS 

office must, through the appropriate USCIS counsel, advise the local counsel for U.S. 

Immigration and Customs Enforcement. 

Some aliens whose citizen spouses had died may have left the United States voluntarily, without 

obtaining a grant ofadvance parole. Others may have left after obtaining advance parole, but 

may have remained abroad after expiration ofthe Form 1-512. Under 8 C.F.R. § 

245.2(a)(ii)(4)(B), these aliens have abandoned their adjustment applications. Also ~bandoned is 

the adjustment application ofan alien who left as the result ofremoval proceedings. 8 C.F.R. § 

245.2(a)(4)(ii)(A). In these situations, a Form 1-485 will not be deemed "pending" for purposes 

ofsection 568(c)(2)(A). However, where section 568(c) applies to the approved Form 1-130, and 

the Form 1-130 has been approved as a Form 1-360, the alien approved on that 1-360 who has left 

the United States may apply for an immigrant visa abroad. 

3. Petition already approved before death 

Ifa widow(er) is the beneficiary ofa Form 1-130 that was approved before the citizen 

petitioner's death, it is not necessary for the widow(er) to request humanitarian reinstatement of 

the approval. Under 8 C.F.R. § 204.2(i)(1 )(iv), the approved Form 1-130 is automatically 

converted to an approved Form 1-360. Any children ofthe widow(er) will also be eligible to 

seek an immigrant visa or adjustment ofstatus based on the converted petition. 

There may be some cases in which a spousal immediate relative Form 1-130 was approved, but 

the approval was revoked automatically under 8 C.F.R. 205. 1(a)(3)(i)(C) upon the citizen 

petitioner's death. Ifthe alien is now eligible for classification as the widow(er) ofa citizen 

under section 568(c)(2)(A) ofthe FY2010 DHS Appropriations Act, the approval will be 

deemed to have been reinstated, effective October 28,2009. No separate request for 

reinstatement is necessary. Under 8 C.F.R. § 204.2(i)(1)(iv), the Form 1-130 will be deemed to 

be an approved Form 1-360. 





Page 7 

4. Admissibility issues 

Whether an alien is actually admissible is not gennane in adjudicating a Fonn 1-130. Matter of 

0-, 8 I&N Dec. 295 (BIA 1959). The only issue resolved by enactment ofsection 568(c) ofthe 

FY2010 DHS Appropriations Act is that the death ofthe citizen spouse, by itself, does not make 

the widow(er) ineligible for immediate relative classification. Thus, the alien must still be 

admissible as an immigrant to obtain adjustment ofstatus or an immigrant visa. 

For those aliens, however, who had pending Fonn 1-130 cases, and who now can benefit from 

section 568(c) ofthe FY2010 DHS Appropriations Act, two inadmissibility grounds warrant 

special consideration. The first is section 212(a)(9)(B)(i) ofthe Act, under which an alien is 

inadmissible ifthe alien seeks admission within a specified period after the alien leaves the 

United States, ifthe alien has accrued a lengthy period ofunlawful presence. The second is 

section 212(a)(9)(A), under which an alien who has been removed (or who left the United States 

while under a final administrative order ofremoval) must obtain consent to reapply, ifthe alien 

seeks admission within the period set in section 212(a)(9)(A). 

It is important to note that the special provisions in this memorandum relating to INA section 

212(a)(9)(A) and (B) apply only to an alien who was the beneficiary ofa Fonn 1-130 that was 

filed by a now-deceased spouse petitioner, and that can now be approved as a Fonn 1-360 under 

section 568(c) ofthe FY2010 DHS Appropriations Act. The purpose ofthese special provisions 

is simply to minimize the adverse effect on these aliens ofthe disputed, and now resolved, issue 

ofthe impact ofthe death ofthe petitioning spouse on the alien's eligibility. 

a. Unlawful presence 

By specifying, in section 568(c)(2)(A) ofthe FY2010 DHS Appropriations Act, that the 

amendment should apply to pending cases, Congress indicated its desire to resolve these cases 

fully. For this reason, for purposes of INA section 212(a)(9)(B)(i), ifan alien remained in the 

United States while awaiting the outcome ofFonn 1-130 that can now be approved as a Fonn 1 

360 under section 568(c) ofthe FY2010 DHS Appropriations Act, the alien will be deemed not 

to have accrued any unlawful presence. This protection applies even ifthe alien was not actually 

in a lawful status while the now-converted Form 1-360 was pending. 

An alien who had a Fonn 1-130 pending on October 28, 2009, but who is present in the United 

States without a lawful admission or parole generally cannot obtain adjustment under INA 

section 245(a). Rather, the alien must generally seek adjustment under INA section 245(i). But 

this relief is not available to an alien who did not have a petition or labor certification filed 

before April 30, 2001. Thus, even ifthe Form 1-130 can now be approved as a Form 1-360, the 

alien may need to leave the United States to obtain an immigrant visa. But since, under this 

guidance memorandum, the alien will be deemed not to have accrued any unlawful presence, he 

or she will not be inadmissible under INA secti9n 212(a)(9)(B)(i). 

Again, these special provisions relating to the accrual ofunlawful presence apply only to an alien 

who is the beneficiary ofa spousal immediate relative Form 1-130 that was pending on October 





Page 8 

28,2009, and that is now approved under section 568(c)(2)(A) ofthe FY2010 DHS 

Appropriations Act and 8 C.F.R. § 204.2(i)(1)(iv) as a widow(er)'s Form 1-360: the widow(er) 

and his or her accompanying child(ren). Ordinarily, the pendency ofa visa petition, itself, does 

not prevent accrual ofunlawful presence. A pending adjustment application, by contrast, does 

prevent accrual ofunlawful presence. Adjudicator's Field Manual chapter 40.9(b)(3)(A). Most 

aliens who have been in litigation because the death ofa spouse led to denial ofthe Form 1-130 

are probably already protected from unlawful presence under the ordinary provisions in the 

AFM. This broader protection against unlawful presence, for this narrow class ofcases, is 

designed to maximize the ability ofthose aliens whose specific situations gave rise to the new 

legislation to fully benefit from it. 

b. Consent to reapply for admission after removal 

These protections against accrual ofunlawful presence apply even ifthe alien was actually 

removed from the United States under a removal order. Still, because the alien was removed 

under a valid order, the alien is inadmissible under INA section 212(a)(9)(A)(i) or (ii). USCIS, 

however, has discretion under section 212(a)(9)(A)(iii) to consent to the alien's re-application for 

admission. USCIS should generally exercise discretion favorably and grant an application for 

consent to reapply under section 212(a)(9)(A)(iii), if: 

• The Form 1-130 that had been filed by the alien's spouse has now been approved as a 

Form 1-360 under section 568(c) ofthe FY2010 DHS Appropriations Act; 

• The alien is otherwise admissible, and 

• The alien's case does not present significant adverse factors beyond the removal itself. 

A USCIS adjudicator will not deny a Form 1-212 filed by an alien whose case was in litigation 

on October 28,2009, and whose Form 1-130 has been approved as a Form 1-360 under section 

568(c)(2)(A) ofthe FY2010 DHS Appropriations Act without consulting USCIS Headquarters 

through appropriate channels. 

5. Remarriage 

Any immediate relative Form 1-130 that was filed on behalfofthe spouse ofa U.S. citizen, and 

that was pending on October 28,2009, is no longer a spousal immediate relative Form 1-130. 

By operation of8 C.F.R. § 204.2(i)(I)(iv), what was filed as a spousal immediate relative Form 

1-130 is now a widow(er)'s Form 1-360. The converted Form 1-360 may be approved only ifthe 

beneficiary, who is now also deemed to be the petitioner, qualifies as the widow(er) ofa citizen, 

as described in INA section 201(b)(2)(A)(i). Eligibility for classification as an immediate 

relative continues "only until the date the spouse remarries." 





Page 9 

6. Ninth Circuit cases 

In acting on the guidance in this memorandum, USCIS adjudicators must keep in mind that the 

Hootkins case was certified as a class action. Thus, an individual need not be a named Plaintiff 

in Hootkins in order for his or her Form 1-130 and Form 1-485 to be reopened under this 

memorandum. Ifan individual has not already been identified as a member ofthe Hootkins 

class, that individual may make a written request to have his or her Form 1-130 and Form 1-485 

reopened and readjudicated. The purpose ofthe written request is simply to identifY the case as a 

Hootkins case. The individual is not required to pay the filing fee for a motion to reopen. The 

case will be considered a Hootkins class member case ifthe case was denied on or after August 

30,2001,1 and: 

• either the citizen spouse petitioner or the alien spouse beneficiary lived in the Ninth 

Circuit when the citizen spouse died; or 

• a USCIS office in the Ninth Circuit made the prior decision on the Form 1-130 or Form 1 

485. 

B. Widow(er)s without pending cases 

The alien widow(er) ofa citizen who died before October 28,2009, but who did not have a Form 

1-130 pending on that date, may now file a Form 1-360, provided that he or she does so no later 

than October 28,2011, and has not remarried. FY2010 DHS Appropriations Act § 568(c)(2)(B). 

Section 568(c)(2)(B) applies ifthe citizen spouse did not file a Form 1-130 on the alien spouse's 

behalfbefore dying. But it also applies ifthere was a Form 1-130 filed, but the decision denying 

the Form 1-130 had become administratively final before October 28,2009, because the decision 

was not the subject ofany type ofadministrative or judicial review that was pending on October 

28,2009. Note that section 568(c)(2)(B)(i) says the Form 1-360 must be filed "not later than the 

date that is 2 years after the date ofthe enactment." Thus, a Form 1-360 that is filed on October 

28,2011, will still be timely. A Form 1-360 filed on or after October 29,2011, will be untimely. 

For any case in which a citizen dies on or after October 28,2009, the alien widow(er) must file 

the Form 1-360 within 2 years ofthe citizen's death. 

C. Children ofwidow(er)s 

The child ofa widow(er) whose Form 1-360 is approved may, as specified in the second sentence 

ofINA section 201(b)(2)(A)(i) and in INA section 204(a)(1)(A)(ii), be included in the 

widow(er)'s petition. Whether an individual qualifies as the widow(er)'s "child" is determined 

according to INA sections 101(b)(l) and 20l(f). 

1 Any case denied before August 30,2001, is time-barred under 28 U.S.c. § 2401(a). But even ifa Ninth Circuit 

case is not considered "pending" because ofHootkins, the alien may still be eligible to immigrate as the widow(er) 

ofa citizen, ifthe alien has not remarried and files the Form 1-360 no later than October 28,2011. 



Deceased U.S. Citizens and their Children (FY201 0 DHS Appropriations Act) 


Page 10 

In a case in which the deceased citizen had filed a Form 1-130 for his or her spouse, and the 

Form 1-130 can now be adjudicated as a Form 1-360 widow(er)'s petition, the child(ren) ofthe 

widow(er) will be deemed to be included in the converted Form 1-360. Thus, it will not be 

necessary to act on any separate Form(s) 1-130 that the deceased citizen may have filed for the 

widow(er)'s children. And the child(ren) ofthe widow(er) will be deemed included in the 

converted Form 1-360 even ifthe deceased citizen had not filed any Form(s) 1-130 for the 

child(ren). 

Note that, in light ofINA section 201(f), whether an individual qualifies as the "child" ofa 

widow(er) depends on the individual's age when the visa petition was filed. For those cases that 

were pending on October 28,2009, the Form 1-360 filing date is deemed to be the date on which 

the deceased citizen filed the prior Form 1-130. Ifa widow(er) has an unmarried son or daughter 

who was under 21 when the deceased citizen filed the Form 1-130, that individual will still be 

deemed to be under 21 for purposes ofthe widow(er)'s now-converted Form 1-360. 

D. Affidavits of support 

Under section 212(a)(4)(C)(i)(I) ofthe INA, a Form 1-864 (Affidavit ofSupport under Section 

213A ofthe Act) is not required in the case ofthe widow(er) ofa citizen and the widow(er)'s 

accompanying children. 2 

E. Conversion of deferred action applications filed under prior guidance 

While remedial legislation was pending in Congress, the Secretary ofHomeland Security 

directed the use ofdeferred action relief to allow widow(er)s ofcitizen whose cases may have 

been affected by the legislation to remain in the United States. In the September 4, 2009 

Memorandum, "Guidance Regarding Surviving Spouses ofDeceased U.S. Citizens and their 

Children," USCIS designated the Form 1-360 as the form an individual would use to request 

deferred action under the Secretary's policy. 

Now that Congress has enacted the legislation, any Form 1-360 that had been filed to obtain 

deferred action relief, and that has not yet been adjudicated as a deferred action request, will now 

be considered to be, and adjudicated as, a widow(er)'s visa petition under 8 C.F.R. § 204.2(b). If 

the Form 1-360 has already been approved as a deferred action request, it will be reopened and 

adjudicated as a visa petition under 8 C.F.R. § 204.2(b). It is not necessary for the alien to file a 

formal motion, nor to pay a new Form 1-360 filing fee. Additionally, any prior grant ofdeferred 

action reliefneed not be rescinded and should remain undisturbed. 

2 There may be an individual case in which, regardless ofthe Form I-864 issue, the factors specified in INA section 

2 I2(a)(4)(B) and the standard public charge guidance, as published at 64 Fed. Reg. 28689 (1999), will support a 

finding that a widow(er) is inadmissible as an alien likely to become a public charge. Even in this case, a Form 1 

864 is not required. Rather, since the statute does not specifically require the Form 1-864, the Form 1-134 can be 

used instead. 8 C.F.R. § 2 I3a.5. It is important to note that, on a Form 1- I34, the sponsor does not have to meet the 

requirements in INA section 21 3A(t), and so does not need to be someone who could have been a "substitute 

sponsor" in a case in which a Form 1-864 actually is required. 



Deceased u.S. Citizens and their Children (FY2010 DHS Appropriations Act) 


Page 11 

Under the deferred action guidance, an alien could file a Form 1-765, application for employment 

authorization, only ifthe deferred action request had been granted. Now that a Form 1-360 that was filed 

to request deferred action is deemed to be a widow(er)'s visa petition, the alien can, if otherwise eligible, 

file a Form 1-485 even before the approval ofthe Form 1-360. 8 C.F.R § 245.2(a)(2)(i)(B). Filing the 

Form 1-485 permits the alien to file a Form 1-765. 8 C.F.R. § 274a.l2(c)(9). 

F. Implementation 

Section 568(c) ofthe FY2010 DRS Appropriations Act became effective on October 28,2009, 

the date ofenactment. USCIS offices and centers, therefore, are to begin implementing the 

instructions established in this memorandum immediately. USCIS adjudicators should note that 

Congress clearly intended to benefit the aliens affected by these provisions. 

AFMTransmittal Memorandum Revisions. The AFMTransmittal Memorandum button is 

revised by adding a new entry, in numerical order, to read: 

AD 10-09 Chapter 21.2 This memorandum removes 

[Date ofSignature] 

chapter 21.2(a)(4) and the 

Note at the end ofchapter 

21.2(h)(1)(C) to reflect 

enactment ofsection 568(c) of 

Public Law 111-83. 

H. Contact Information 

Questions regarding this memorandum should be directed to the Office of Domestic Operations 

through appropriate channels. For cases adjudicated overseas, questions should be directed to 

the International Operations Division, Programs Branch. 

This memorandum is not intended to, and does not, create any right or benefit, substantive or 

procedural, enforceable at law or in equity, by any party against the United States, its 

departments, agencies or entities, its officers, employees, or agents, or any other person. 

Distribution: 

Regional Directors 

District Directors 

Field Office Directors 

National Benefits Center Director 

Service Center Directors 


U.S. Citizenship and Immigration Services 

Office of the Director (MS 2000) 

Washington, DC 20529-2000 

December 16, 2010 

PM-602-0017 

Policy Memorandum 

SUBJECT: Approval of Petitions and Applications after the Death of the Qualifying Relative 

under New Section 204(l) of the Immigration and Nationality Act 

Revisions to Adjudicator’s Field Manual (AFM): New Chapter 10.21 and an 

Amendment to Chapter 21.2(h)(1)(C) (AFM Update AD-10-51) 

Purpose 

This Policy Memorandum (PM) ensures that USCIS uniformly and consistently adjudicates 

petitions and applications in light of section 204(l) and 213A(f)(5) of the Immigration and 

Nationality Act (“the Act”), 8 U.S.C. §§ 1154(l) and 1183a(f)(5). 

Scope 

Unless specifically exempted herein, this PM applies to and is binding on all USCIS employees. 

Authority 

Sections 204(l) and 213A(f)(5) of the Act, 8 U.S.C. §§ 1154(l) and 1183a(f)(5), as amended by § 

568(d) and (e) of the DHS Appropriations Act, 2010, Public Law 111-83 (“Public Law 111-83”), 

123 Stat. 2142, 2187-88 (2009). 

Background 

For many years, 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. See Matter of Sano, 19 I&N Dec. 299 (BIA 1985); Matter of Varela, 13 I&N Dec. 453 

(BIA 1970). 

New section 204(l) of the Act changes this governing law with respect to an alien who is seeking 

an immigration benefit through a deceased “qualifying relative.” Section 204(l) permits the 

approval of a visa petition or refugee/asylee relative petition, as well as any adjustment 

application and related application, if the alien seeking the benefit: 

 

 

 

Resided in the United States when the qualifying relative died; 

Continues to reside in the United States on the date of the decision on the pending 

petition or application; and 

Is at least one of the following: 

The beneficiary of a pending or approved immediate relative visa petition; 

AILA InfoNet Doc. No. 11011061. (Posted 01/10/11)

PM-602-0017: Subject New INA Section 204(l) – 

Approval of Petitions and Applications after the Death of the Qualifying Relative 


Page 2 

 

 

 

 

 

The beneficiary of a pending or approved family-based visa petition, including both 

the principal beneficiary and any derivative beneficiaries; 

Any derivative beneficiary of a pending or approved employment-based visa petition; 

The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative 

Petition; 

An alien admitted as a derivative “T” or “U” nonimmigrant; or 

A derivative asylee under section 208(b)(3) of the Act. 

Section 568(d) of Public Law 111-83 does not expressly define the “qualifying relative.” From 

the list of aliens to whom the new section 204(l) applies, however, USCIS infers that “qualifying 

relative” means an individual who, immediately before death, was: 

 

 

 

 

 

 

The petitioner in a family-based immigrant visa petition under section 201(b)(2)(A)(i) or 

203(a) of the Act; 

The principal beneficiary in a family-based visa petition case under section 

201(b)(2)(A)(i) or 203(a) of the Act; 

The principal beneficiary in an employment-based visa petition case under section 203(b) 

of the Act; 

The petitioner in a refugee/asylee relative petition under section 207 or 208 of the Act; 

The principal alien admitted as a T or U nonimmigrant; or 

The principal asylee, who was granted asylum under 208 of the Act. 

Section 568(e) of Public Law 111-83 provides a conforming amendment to INA section 

213A(f)(5)(B) relating to affidavits of support. INA section 212(a)(4)(C) provides that, to avoid 

public charge inadmissibility, most immediate relatives and family-based immigrants, and some 

employment-based immigrants, must have filed an affidavit of support on their behalf that meets 

the requirements of INA section 213A. If, after the death of a qualifying relative, a visa petition 

is approved or not revoked under new INA section 204(l), then another individual who qualifies 

as a “substitute sponsor” must submit a Form I-864, Affidavit of Support under section 213A of 

the Act. If the alien is not required under sections 212(a)(4)(C) and 213A of the Act and 8 

C.F.R. § 213a.2(a)(2)(ii) to have a legally binding affidavit of support, then there is no need for a 

substitute sponsor to submit a Form I-864. 

Policy 

USCIS officers will follow section 204(l) and section 213A(f)(5) of the Act, as amended by 

sections 568(d) and (e) of Public Law 111-83, and the amendments to the Adjudicator’s Field 

Manual (AFM) made by this PM, in adjudicating on or after October 28, 2009, any petition or 

application to which section 204(l) and section 213(A)(1)(5) apply. 

Section 568(d) and (e) of Public Law 111-83 became effective on October 28, 2009 when the 

President signed Public Law 111-83. This PM applies to any case adjudicated on or after 

October 28, 2009 even if the case was filed before October 28, 2009. 





Page 3 

For a case denied before October 28, 2009 USCIS policy is that an alien may file, with the 

proper filing fee, an untimely motion to reopen a petition, adjustment application, or waiver 

application, if new section 204(l) would now allow approval of a still-pending petition or 

application. See AFM chapter 20.5(c)(8), as added by this PM, for complete guidance on this 

issue. 

Implementation 

The AFM is amended as follows. 

1. New Chapter 10.21 is added to the AFM, to read as follows. 

10.21 Approval of pending immigrant visa petitions, T or U extension 

applications, asylee/refugee relative petitions, or applications after death of the 

qualifying relative. 

(a) General. Except as specified in this chapter, if the approval of an immigrant visa 

petition, refugee/asylee relative petition or application for immigration benefits requires 

the existence of a family relationship between the alien and another individual, the 

death of the petitioner or other individual while the case is pending requires the denial of 

the petition or application. 

(b) Widow(er)s of Citizens. Paragraph (a) of this chapter does not apply to a Form 

I-130 filed by a citizen on behalf of his or her spouse. Upon the death of the citizen 

petitioner, Form I-130 is converted to a widow(er)’s Form I-360. In light of the 

amendment to section 201(b)(2)(A)(i) of the Act by section 568(c) of Public Law 111-83, 

this conversion takes place even if the citizen and alien were married for less than 2 

years when the citizen died. 

In the case of a K-1 nonimmigrant who marries the petitioner within 90 days of 

admission, the K-1 nonimmigrant (and any K-2 children who are otherwise eligible) may 

obtain adjustment of status without the need for Form I-360, just as they would have 

been eligible for adjustment without Form I-130, if the petitioner had not died. 

If an alien was admitted as a K-3 or K-4 nonimmigrant, the Form I-130 filed for 

the K-3 is converted to a Form I-360 upon the citizen petitioner’s death. The K-4 can 

then “accompany or follow to join” the K-3 based on that Form I-360. 

A widow(er)’s eligibility for adjustment ends if the widow(er) remarries before 

obtaining LPR status. 





Page 4 

A USCIS officer may encounter a case in which a petition or application was 

approved before October 28, 2009, despite the death of the citizen spouse who filed the 

petition. 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. In some 

circuits, but not all, there were precedents from the relevant courts of appeals 

supporting approval of an immediate relative spousal Form I-130 after the petitioner’s 

death. In light of those precedents, and given the intent of section 568(c) of Public Law 

111-83, 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 citizen spouse and the resulting invalidity of the Form I-864 filed by 

the citizen spouse. 

(c) Effect of Section 204(l) of the Act. Paragraph (a) of this chapter does not apply, 

and a petition or application may be approved despite the death of the qualifying 

relative, if section 204(l) of the Act, as amended by section 568(d) of the FY2010 DHS 

Appropriations Act, Public Law 111-83, applies to the case. See paragraph (c)(6) of this 

chapter concerning the authority to deny these cases on discretionary grounds. 

Section 568(d)(2) of Public Law 111-83 specifies that new section 204(l) 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 section 204(l). 

(1) When Section 204(l) Applies. Section 204(l) 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. 

Section 204(l) allows the approval of a pending petition or application, despite the death 

of the qualifying relative, if the alien seeking the benefit of section 204(l): 

 

 

 

Resided in the United States when the qualifying relative died; 

Continues to reside in the United States on the date of the decision on the 

pending petition or application; and; 

Is at least one of the following: 

The beneficiary of a pending or approved immediate relative visa petition; 

The beneficiary of a pending or approved family-based visa petition, including 

both the principal beneficiary and any derivative beneficiaries; 

o Any derivative beneficiary of a pending or approved employment-based visa 

petition; 

The beneficiary of a pending or approved Form I-730, Refugee/Asylee 

Relative Petition; 

An alien admitted as a derivative “T” or “U” nonimmigrant; or 

A derivative asylee under section 208(b)(3) of the Act. 





Page 5 

The new section 204(l) does not expressly define the “qualifying relative.” From the 

list of aliens to whom new section 204(l) applies, USCIS infers that “qualifying relative” 

means an individual who, immediately before death was: 

 

 

 

 

 

 

The petitioner in an immediate relative or family-based immigrant visa petition 

under section 201(b)(2)(A)(i) or 203(a) of the Act; 

The principal beneficiary in a widow(er)’s immediate relative or a family-based 

visa petition case under section 201(b)(2)(A)(i) or 203(a) of the Act; 

The principal beneficiary in an employment-based visa petition case under 

section 203(b) of the Act; 

The petitioner in a refugee/asylee relative petition under section 207 or 208 of the 

Act; 

The principal alien admitted as a T or U nonimmigrant; 

The principal asylee, who was granted asylum under 208 of the Act. 

Section 204(l) 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 

section 204(l), and section 204(l) could have permitted approval, USCIS must, on its 

own motion, reopen the case for a new decision in light of section 204(l). See chapter 

10.21(c)(8) of this AFM for guidance on cases denied before October 28, 2009. 

Section 101(a)(33) of 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, section 204(l) 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. 

Sections 203(d), 207(c)(2)(A), and 208(b)(3)(A) permit 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 section 204(l) 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 section 204(l). 

(2) Widow(er)s of Citizens. As stated in paragraph (b) of this chapter, section 204(l) 

does not apply to a Form I-130 filed by a now-deceased citizen on behalf of his or her 

spouse. Because of the automatic conversion of the Form I-130 to a Form I-360, there 





Page 6 

is no longer any Form I-130 to which section 204(l) can apply. Please refer to Chapter 

10.21(c)(5) concerning the effect of section 204(l) on the widow(er)’s ability to seek a 

waiver of inadmissibility, after the death of the citizen spouse. 

(3) Action in Pending Petition Cases. 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 

section 204(l) 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). 




no other eligibility requirements are changed by the enactment of section 204(l). 

For example, a petition to which section 204(l) applies may still be subject to denial 

under section 204(c) of the Act (relating to prior marriage fraud) or any other statutory 

bar to approval. Note also that paragraph (c)(6) of this chapter provides guidance 

concerning the authority to deny a case under section 204(l) as a matter of discretion. 

An immigrant visa petitioner may withdraw a pending petition at any time before the 

admission or adjustment of the principal beneficiary. 8 C.F.R. § 103.2(b)(6). USCIS 

cannot adjudicate a petition that has been withdrawn. See Matter of Cintron, 16 I&N 

Dec. 9 (BIA 1976). Pursuant to section 204(l) of the Act, whether an employment-based 

petitioner is able to withdraw the petition and possibly affect the ability of principal 

beneficiary’s alien widow(e) 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 section 204(l) 

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 





Page 7 

family-based petitioner wants the case to continue to adjudication. But USCIS does not 

interpret section 204(l) 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. See Matter of Cintron. 

Section 204(l) of the Act requires that a T or U nonimmigrant surviving relative must 

have been admitted as a T or U nonimmigrant derivative at the time of death of the 

qualifying relative T or U nonimmigrant principal. Therefore, USCIS may not approve 

derivative status for a surviving relative whose qualifying relative died prior to approval 

of the derivative T application (I-914A) or derivative U petition (I-918A). However, 

USCIS officers should thoroughly review the case to determine whether the surviving 

relative may qualify as a principal T or U nonimmigrant. Also, if the surviving relative 

already had status as a T or U nonimmigrant derivative at the time of death of the 

qualifying relative, the surviving relative may apply for adjustment of status, as specified 

in paragraph (c)(4) of this chapter, notwithstanding the death of the principal, once the 

surviving relative has the requisite continuous physical presence in the U.S. If the 

principal dies prior to accrual of the requisite physical presence, the surviving relative 

may file a Form I-539 to apply for an extension of his or her T or U nonimmigrant status, 

notwithstanding the death of the principal, if necessary, until the surviving relative has 

accrued sufficient physical presence to apply for adjustment of status. 

(4) Action in Pending Adjustment Cases. (i) 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 section 204(l), 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. 

See Chapter 10.21(c)(5) for the impact of section 204(l) on waiver and other related 

applications. 




no other adjustment eligibility requirements are changed by the enactment of section 

204(l). 

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.” Section 245(c) of the 

Act may make the alien ineligible, if section 245(i) or (k) of the Act does not apply to the 





Page 8 

alien. However, 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 section 204(l) will preserve any eligibility for 

adjustment that existed immediately before the qualifying relative died. For example, if 

an immediate relative petition is approved or a pre-death approval is reinstated under 

section 204(l) of the Act, the beneficiary remains eligible for the immediate relative 

exemptions in section 245(c), assuming the beneficiary is not barred from adjustment 

under sections 245(d) or 245(f) of the Act. 

The death of a principal refugee has not, historically, affected the eligibility of a 

derivative refugee for adjustment under section 209(a) of the Act. See Memorandum 

from William R. Yates to Field Offices, “Procedural Guidance on Admission and 

Adjustment of Status for Refugees” at p. 9 (May 15, 2000). Thus, while section 204(l) 

may benefit the beneficiary of a Form I-730, if the principal dies before the derivative is 

admitted, reliance on section 204(l) is not necessary for a derivative who has already 

been admitted. By contrast, section 204(l) can benefit an alien who seeks adjustment 

based on a derivative asylum grant, under section 209 of the Act, as a derivative T 

nonimmigrant under section 245(l) of the Act, or as a derivative U nonimmigrant under 

section 245(m) of the Act. Any one of these aliens may still be eligible for adjustment, in 

light of section 204(l) of the Act, despite the death of a qualifying relative. But the alien 

must still establish that he or she is eligible for adjustment, apart from the qualifying 

relative’s death, under the governing statute. 1 

Similarly, the applicant must be admissible, or must obtain any available waiver of 

inadmissibility. Section 204(l) of the Act, by its terms, does not automatically waive any 

ground of inadmissibility that may apply to an adjustment applicant. See Public Law 

111-83, § 568(d)(2). Thus, an adjustment applicant whose case is governed by section 

204(l) of the Act may need to apply for a waiver or other relief from inadmissibility. See 

paragraph (c)(5) of this chapter concerning the effect of section 204(l) of the Act on 

applications for waivers or other relief from inadmissibility. 

Because section 204(l) of the Act 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 section 204(l) of the Act. An alien whose 

petition has been approved or reinstated under new section 204(l) of the Act, but who is 

not eligible to adjust status, would not be precluded from applying for an immigrant visa 

1 In the past, USCIS has been willing to grant asylum as a principal to a derivative asylee who no longer qualified as 

a derivative. This action would preserve the derivative’s ability to adjust even if the derivative was no longer the 

spouse or child of a principal. Section 204(l) of the Act makes this step unnecessary, if the reason for the loss of 

derivative status is the death of the principal. 





Page 9 

at a consular post abroad. 2 The approval of a visa petition under section 204(l) of the 

Act 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 sections 

212(a)(4)(C) and 213A of the Act and 8 C.F.R. § 213a.2. If the alien is required to have 

a Form I-864, and the visa petition is approved under section 204(l), a substitute 

sponsor will need to submit a Form I-864. Pub. L. 111-83, § 568(e), 123 Stat. at 2187. 

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. 8 C.F.R. § 213a.2(e)(1). 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. 8 C.F.R. § 213a.2(e)(2)(ii). 

Also, the affidavit of support has an important role, beyond establishing that the 

sponsored alien is not inadmissible on public charge grounds. The sponsor’s income 

may be deemed to the sponsored alien in determining the sponsored alien’s eligibility 

for means-tested public benefits. 8 U.S.C. §§ 1631 and 1632. The sponsor is also 

responsible for reimbursing an agency for the costs of any means-tested public benefit 

provided to the sponsored alien. Section 213A(b) of the Act. 

Accepting as still valid a Form I-864 from someone whom USCIS knows to be dead 

would work against each of these vital aspects of the affidavit of support requirement. 

Thus, there is no longer a valid and enforceable Form I-864 if the sponsor dies while the 

petition, visa application, or adjustment application is pending. 3 

(ii) 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 

2 The alien must have been continuing to reside in the United States in order for the petition to have been approved. 

Once it has been approved, however, the alien’s departure to obtain a visa would not change the fact that the alien 

met the residence requirements when the officer adjudicated the petition. 

3 A substitute sponsor’s Form I-864 is not needed if the alien is not required to have a Form I-864 at all. For 

example, an alien may already have, or be entitled to be credited with, sufficient quarters of coverage under the 

Social Security Act to be exempt from the Form I-864 requirement. See 8 C.F.R. § 213a.2(a)(2)(ii)(C). Also, as 

with any Form I-864, the substitute sponsor may rely on the financial resources of the sponsored alien to meet the 

Form I-864 requirements. See id. § 213a.1 (including sponsored alien’s lawful income in the United States in 

“household income”) and § 213a.2(a)(iii)(B) (including sponsored alien’s assets). 





Page 10 

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 section 204(l) 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. 

(iii) Removal of conditions under section 216A of the Act. An alien who acquires 

LPR status based on a qualifying investment under section 203(b)(5) of 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 section 204(l) of 

the Act, the alien remains subject to the conditions imposed by section 216A of the Act. 

Unlike the death of a petitioning spouse under section 216 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, under 8 C.F.R. § 216.6(a)(6), 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. 

(5) Waivers and Other Related Applications. The text of new section 204(l) provides 

that the new approval authority applies not only to the visa petition, but to an adjustment 

application and “any related applications.” Section 568(d)(2) of the FY2010 DHS 

Appropriations Act specifies that section 568(d)(1) does not waive grounds of 

inadmissibility. But the provision does remove “ineligibility based solely on the lack of a 

qualifying family relationship” as a basis for denying relief. USCIS has determined, 

therefore, that section 204(l) does give USCIS the discretion to grant a waiver or other 

form of relief from inadmissibility to an alien described in section 204(l), even if the 

qualifying relationship that would have supported the waiver has ended through death. 

Note that it is not necessary for the waiver or other relief application to have been 

pending when the qualifying relative died. Section 204(l) of the Act permits the approval 

of a waiver or other relief application despite the death of a qualifying relative if: 

• a petition or application specified in paragraph (c)(1) of this chapter was pending 

or approved when the qualifying relative died; 

• the alien was residing in the United States when the qualifying relative died;; and 

• the alien still resides in the United States. 

If a pending petition or application to which section 204(l) applies is denied, despite 

section 204(l) of the Act, then the alien may not obtain approval of a waiver or other 

relief under section 204(l). 

Some waivers require a showing of extreme hardship to a qualifying relative, who 

must be either a citizen or a permanent resident. Since the legislation intends to have 





Page 11 

the new section 204(l) of the Act extend not only to the approval of the pending petition, 

but also to any related applications, the fact that the qualifying relative has died will be 

noted in the decision and deemed to be the functional equivalent of a finding of extreme 

hardship. Note that 204(l) applies in this context only when, the hardship being claimed 

by the surviving beneficiary, would have been on account of claimed extreme hardship 

that would have been suffered by the qualifying relative were he or she still alive. 

Additionally, it should be noted that the finding of extreme hardship merely permits, and 

never compels a favorable exercise of discretion. See Matter of Mendez-Moralez, 21 

I&N Dec. 296 (BIA 1996). That is, as with any other waiver case, a waiver application 

decided in light of section 204(l) requires the weighing of all favorable factors against 

any adverse discretionary factors. Extreme hardship is just one positive factor to be 

weighed. See id. The inadmissibility ground sought to be waived is, itself, an adverse 

factor. See INS v. Yang, 519 U.S. 26 (1996). For example, inadmissibility based on a 

conviction for a violent or dangerous crime requires proof of exceptional or extremely 

unusual hardship, or some other extraordinary circumstance, in order for a waiver 

application to be approved. 8 C.F.R. § 212.7(d). 

The preceding paragraph assumes that the qualifying relative was already a citizen or 

permanent resident at the time of death. If the qualifying relative was not already a 

citizen or permanent resident, then the qualifying relative’s death does not make the 

alien eligible for a waiver that would not have been available if the qualifying relative 

had not died. If the qualifying relative was not a citizen or permanent resident, then the 

alien may not be able to obtain a waiver of inadmissibility unless there is yet another 

individual who has the requisite status and family relationship to meet the requirements 

of the waiver provision, or the waiver provision does not require a family relationship 

and/or extreme hardship. 

As noted in Chapter 10.21(c)(2), section 204(l) does not apply to Form I-130 that was 

filed by a now-deceased citizen for his or her spouse, who is now the widow(er) of a 

citizen. Once the citizen has died, the widow(er) becomes the visa petitioner. USCIS 

has determined, however, that if the widow(er) was the beneficiary of a pending or 

approved Form I-130 when the original petitioner died, and the widow(er) meets the 

residence requirements in section 204(l), then section 204(l) preserves the widow(er)’s 

ability to have a waiver application approved as if the now deceased citizen had not 

died. As with any other waiver application that is covered by section 204(l), the fact that 

the citizen petitioner has died will be noted in the decision and deemed to be the 

functional equivalent of a finding of extreme hardship. But the finding of extreme 

hardship merely permits, and never compels a favorable exercise of discretion. See 

Matter of Mendez-Moralez, supra. The widow(er) must still establish that he or she 

merits a favorable exercise of discretion. 

(6) Discretionary Denial under Section 204(l). Section 204(l) gives USCIS discretion 

to deny a petition or application that may now be approved despite the qualifying 





Page 12 

relative’s death, if USCIS finds, as a matter of discretion, “that approval would not be in 

the public interest.” Section 204(l)(1) of the Act, 123 Stat. at 2187. This exercise of 

discretion, moreover, is “unreviewable.” Id. 

USCIS officers will not, routinely, use this discretionary authority to deny a visa 

petition that may now be approved, despite the death of the qualifying relative. In a visa 

petition proceeding that is not subject to section 204(c) of the Act or some other 

approval bar, the overriding issue is simply whether the beneficiary qualifies for the visa 

classification sought. Inadmissibility, for example, does not warrant denial of a visa 

petition. See Matter of O-, 8 I&N Dec. 295 (BIA 1959). Section 204(l) now provides that 

an alien described in section 204(l) can still qualify for the benefit sought, despite the 

qualifying relative’s death. Thus, only truly compelling discretionary factors should be 

cited as a basis to deny a visa petition under section 204(l), on the ground “that 

approval would not be in the public interest.” Section 204(l)(1) of the Act, 123 Stat. at 

2187. Before denying a visa petition on this basis, the USCIS officer must consult with 

the appropriate Headquarters Directorate, through appropriate channels. 

This consultation requirement also applies to all cases, other than visa petition 

cases, that may now be approved under section 204(l) despite the qualifying relative’s 

death. The USCIS officer must consult the appropriate Headquarters Directorate before 

denying a case on the ground “that approval would not be in the public interest.” 

Section 204(l)(1) of the Act, 123 Stat. at 2187. Consultation is not required if the USCIS 

officer will deny the case based solely on the traditional discretionary factors that would 

have applied to the particular type of case, even if the qualifying relative were still alive. 

For example, unwaived or unwaivable fraud or criminal inadmissibility, or security 

grounds, may warrant denial as a matter of discretion under ordinary circumstances, 

and consultation is not required in such a case. Rather, consultation is required only if 

the USCIS officer intends to deny the case as a matter of discretion on the “not . . . in 

the public interest” ground. 

(7) Humanitarian Reinstatement. Under DHS regulations at 8 C.F.R. § 

205.1(a)(3)(i)(C), approved immediate-relative and family-based petitions filed under 

section 204 are automatically revoked upon the death of the petitioner or the 

beneficiary. Since approval under section 204(l) is a matter of agency discretion, 

enactment of section 204(l) does not supersede this long-standing regulation. But 8 

C.F.R. § 205.1(a)(3)(iii)(C)(2) also gives USCIS discretion to decide not to revoke the 

approval for “humanitarian reasons.” In light of section 204(l), it would generally be 

appropriate to reinstate the approval of an immediate-relative or family-based petition if 

the alien was residing in the United States when the petitioner dies and if the alien 

continues to reside in the United States. In those circumstances, reinstating the 

approval of an immediate-relative or family-based petition is appropriate even if the 

death that resulted in the automatic revocation occurred before October 28, 2009. 





Page 13 

The fact that USCIS already denied reinstatement before October 28, 2009, does not 

preclude a new request. 

Under DHS regulations at 8 C.F.R. § 205.1(a)(3)(iii)(B), approved employmentbased 

petitions filed under INA section 203(b) are automatically revoked upon the death 

of the petitioner or the beneficiary. There is no comparable regulatory provision that 

allows for the reinstatement of the approval of employment-based petitions based upon 

“humanitarian reasons.” Similarly, the DHS regulation at 8 C.F.R. §205.1(a)(3)(iii)(C)(2) 

does not provide for reinstatement of approval of an immediate-relative or family-based 

visa petition if it is the principal beneficiary, rather than the petitioner, who has died. In 

light of section 204(l), however, USCIS officers may act favorably on requests to 

reinstate approvals under section 205 of the Act and 8 C.F.R. part 205. 

See Chapter 21.2(h)(1)(C) of this AFM for further guidance on reinstating approval of 

visa petitions. Chapter 21.2(h)(1)(C) specifies the information that the beneficiary 

should submit with the written request for reinstatement and also specifies that the 

written request should be submitted to the USCIS service center or field office that 

approved the petition except that, if the beneficiary has properly filed an application for 

adjustment of status with USCIS, the request should be submitted to the USCIS office 

with jurisdiction over the adjustment application. 

USCIS may still deny a request to reinstate approval as a matter of discretion. As 

stated in chapter 10.21(c)(6) of the AFM, however, the USCIS officer must consult the 

appropriate Headquarters Directorate through appropriate channels, if the USCIS officer 

intends to deny reinstatement solely based on a finding under section 204(l) that 

granting it “would not be in the public interest.” 

(8) Application of New Section 204(l) to Cases Adjudicated before October 28, 2009. 

(i) Denials. New section 204(l) 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 new section 

204(l) 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 section 204(l), 

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 

new section 204(l) 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 under 8 





Page 14 

C.F.R. § 103.7(c)(5). 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 new 

section 204(l). 

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. AFM 

chapter 40.9.2(b)(3)(A). If USCIS grants, under section 204(l) 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 section 204(l) 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, as discussed in paragraph (c)(5) of this chapter. 

(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 section 204(l), 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. 

2. Chapter 21.2(h)(1)(C) of the AFM is amended by: 

a. Revising the first and second sentences in the third paragraph; and 

b. Removing the final paragraph and replacing it with 2 additional paragraphs at 

the end. 

The revisions read as follows: 

21.2 Factors Common to the Adjudication of All Relative Petitions 

* * * * * 





Page 15 

(h) Revocation of Approval. * * * 

(1) Automatic Revocation. * * * 

* * * * * 

* * * * * 

(C) Discretionary Authority to Not Automatically Revoke Approval. 

To request humanitarian reinstatement of a revoked petition, the beneficiary should 

send a written request for reinstatement to the USCIS service center or field office that 

approved the petition except that, if the beneficiary has properly filed an application for 

adjustment of status with USCIS, the written request should be submitted to the USCIS 

office with jurisdiction over the adjustment application. 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) and, if required by section 213A of the Act and 8 

CFR part 213a, a Form I-864 from a substitute sponsor and proof of the substitute 

sponsor’s relationship to the beneficiary. * * * 

While there are no other rules or precedents on how to apply this discretionary 

authority, reinstatement may be appropriate when revocation is not consistent with “the 

furtherance of justice,” especially in light of the goal of family unity that is the underlying 

premise of our nation’s immigration system. In particular, reinstatement is generally 

appropriate as a matter of discretion, if section 204(l) of the Act and Chapter 10.21 of 

this AFM would support approval of the petition if it were still pending. For cases that 

are not covered by section 204(l) of the Act, the reinstatement request will be addressed 

in light of the factors that USCIS has traditionally considered in acting on reinstatement 

requests, which include: 

• The impact of revocation on the family unit in the United States, especially on 

U.S. citizen or LPR relatives or other relatives living lawfully in the United 

States; 

The beneficiary’s advanced age or poor health; 

The beneficiary’s having resided in the United States lawfully for a lengthy 

period; 

 

 

The beneficiary’s ties to his or her home country; and 

Significant delay in processing the case after approval of the petition and after 

a visa number has become available, if the delay is reasonably attributable to 

the Government, rather than the alien. 

Although family ties in the United States are a major consideration, there is no strict 

requirement for the alien beneficiary to show extreme hardship to the alien, or to 





Page 16 

relatives already living lawfully in the United States, in order for the approval to be 

reinstated. If the alien is required to have a Form I-864 affidavit of support, however, 

there must be a Form I-864 from a substitute sponsor. 8 C.F.R. § 205.1(a)(3)(i)(C). 

3. The AFM Transmittal Memorandum button is revised by adding a new entry, 

in numerical order, to read: 

PM-602-0017 

AFM Update 

10-51 

[12/16/2010] 

Chapter 10.21 

and 21.2(h)(1)(c) 

This memorandum adds new Chapter 10.21 and 

revises Chapter 21.2(h)(1)(c) to reflect enactment 

of INA section 204(l), allowing some petitions and 

applications to be approved despite the death of the 

qualifying relative. 

Use 

This PM is intended solely for the guidance of USCIS personnel in the performance of their 

official duties. It is not intended to, does not, and may not be relied upon to create any right or 

benefit, substantive or procedural, enforceable at law or by any individual or other party in 

removal proceedings, in litigation with the United States, or in any other form or manner. 

Contact Information 

Questions regarding this memorandum should be directed to the Field Operations Directorate or 

the Service Center Operations Directorate, through appropriate channels. For cases adjudicated 

overseas, questions should be directed to the International Operations Division, Programs 

Branch. 



Office of Public Engagement 

Washington, DC 20529 

Agenda 

I. Welcome and Introductions 

II. 

III. 

IV. 

Office of Intake and Document Production 

Receipt Issuance 

Fee Waiver Statistics 

Customer Service Directorate 

Online Case Status System 

Undeliverable Mail 

Office of Performance and Quality 

Processing Times – Web Page Updates 

V. Office of Citizenship 

Citizenship Test 

VI. 

VII. 

VIII. 

IX. 

Office of Transformation Coordination 

I-130 Automatization 

Office of Policy & Strategy 

Child Status Protection Act 


SSI Benefits 

Field Operations Directorate 

Lost Record of G-28 on File 

N-600s for Individuals Residing Abroad 

N-648 Expiration 

X. Service Center Operations Directorate 

Recognition of ECFMG Certification 

VIBE Requests for Evidence 

I-539 – H4 Cases 

H-1B Cap Exemption 

I-797 Notices for J-1 Waivers 

I-485 TRIG/Material Support Cases 

XI. 

Open Forum 

AILA InfoNet Doc. No. 11042964. (Posted 06/29/11)



Washington, DC 20529-2000 

June 29, 2011 

Questions & Answers 

USCIS Quarterly National Stakeholder Engagement 

Office of Intake and Document Production 

Question: Receipt Issuance 

Please address the delay in issuance of I-539 and I-130/485 receipts. In each instance, it is our 

experience, it takes 4+ weeks to receive a receipt. 

Response: We are not aware of a delay in issuance of the I-539 receipts and would appreciate 

any examples that you could provide for further review. The delay in I-130/I-485's was due to 

an unexpected amount of cases falling into the case resolution queues, for review, as we 

transitioned our workload onto a new processing platform. This impacted our processing times 

and four weeks was the extreme. 

We have performed in depth analysis, identified and implemented some changes to reduce the 

number of cases that need to be reviewed by USCIS staff. 

Filling out the applications/petitions correctly with correct fees and signatures. Please refer 

to www.uscis.gov for filing tips which are located on each form page. 

In addition, we have a designated e-mail address for these types of customer inquiries; 

lockboxsupport@dhs.gov. 

Question: Fee Waiver Statistics 

Please provide a month-by-month breakdown of fee waiver applications, approvals, and denials for each 

type of application, for March, April, and May 2011. 


Response: 

FY 2011 Fee 

Waivers 

Form Type Received Approved 

EOIR 373 232 62% 

% 

Approved 

I-102 208 10 5% 

I-129 15 0 0% 

I-130 819 1 0% 

I-131 728 319 44% 

I-140 1 0 0% 

I-192 8,061 8,059 100% 

I-193 185 185 100% 

I-212 15 8 53% 

I-290B 824 467 57% 

I-290C 6 6 100% 

I-360 292 250 86% 

I-485 20,353 17,858 88% 

I-539 619 544 88% 

I-600 3 3 100% 

I-601 254 183 72% 

I-730 1 1 100% 

I-751 787 369 47% 

I-765 21,593 19,403 90% 

I-765 TPS 412 315 76% 

I-817 14 10 71% 

I-821 349 290 83% 

I-821 TPS 879 729 83% 

I-824 174 79 45% 

I-90 9,134 6,536 72% 

I-929 31 31 100% 

Motions 207 196 95% 

N-336 83 66 80% 

N-400 27,714 23,166 84% 

N-565 1,145 710 62% 

N-600 1,762 1,567 89% 

Total Waivers 102,782 87,331 85% 

Customer Service Directorate 

Question: Online Case Status System 

a) Receipt Numbers 

- 2 - 


Why do some "Receipt Numbers" never get into the case status systems? For example receipt numbers 

beginning with SIM? We have also found this to be an issue with MSC receipts. 

Response: Case Status Online provides users with secure, self-service access, via the web, to 

Claims 3 and Claims 4 USCIS systems status information. The USCIS Service Centers which 

process the customer applications and petitions within Claims 3 (C3) and Claims 4 (C4) feed 

status updates to the CRIS Case Status application each night. Currently the CRIS system 

interface is only with the C3 and C4 systems; hence the system only accepts Service Center 

receipt numbers. 

b) Frequency of Updates 

How often is the case status system updated? We have found that sometimes the case status system is 

never updated (ie-I-131 approved April 26 as of May 11 the case status system still says "we received the 

I-131" when in reality we already have the re-entry permit) 

Response: Information is fed nightly from the USCIS Case Management Systems, Claims 3 

(C3) and Claims 4 (C4). Any case which has been changed from one History Action Code (HAC) 

to another will be updated in the CRIS database. The HACs provide important information to the 

customer such as receipt date, location, current status and further instructions. However not all 

HACs are displayed within the Case Status Online application. Each action code has the ability to 

have the display turned on or off for Case Status Online. This decision is driven mostly by the 

availability of information to CRIS from the requestors for CLAIMS 3 and CLAIMS 4. A few are 

not displayed because the action code tracks internal movement that does not add value to 

information we are providing the customer. 

Question: Undeliverable Mail 

Can an Officer at the Customer Service Center determine the contents of a document that was returned to 

the Service as undeliverable? 

Response: The ISOs at the Tier 2 Call Centers have been provided with access to the (Secure 

Mail Initiative); which allows the electronic submittal and tracking of mail to its destination. 

Once a valid receipt number is entered into SMI, the corresponding USPS tracking number, as 

well as the delivery status will appear. The ISOs at Tier 2 also have access to all USCIS systems 

and contacts in the field to verify the type of document(s) that were mailed. 

Office of Performance and Quality 

Question: Processing Times - Webpage Updates 

How often is the processing time web-page updated? How accurate are processing times dates/time 

frames listed on processing time web-page? 

Response: Processing times are updated and posted monthly to the web on or about the 15 th day 

of each month. The processing times are calculated from final statistics compiled 45 days prior to 

their posting and are based on the number of applications pending and applications received 

within each field office and service center. The processing times derived under this model are the 

result of mathematical computations and are not based on the specific age of each case. USCIS 

- 3 - 


does not possess the capability under its current paper-based processing model to manage and 

track adjudication processing based upon each unique applicant. Therefore, it is important to note 

that the processing time information is the “average” time that a case pending within a certain 

USCIS office is taking to be processed. Because the processing time figures are an average 

calculation, it is possible that there are individual cases that have been pending within the USCIS 

inventory for longer than the stated processing time indicates. 

Based upon the current methodology for calculating processing times, USCIS requires 30 days to 

collect and conduct quality reviews on the performance data received from its field offices and 

service centers to ensure that the final data used to calculate the processing time information is 

accurate and reliable. Another 15 days is needed to calculate the processing times, receive field 

office and service center concurrence, and upload to the USCIS website. Although the processing 

time information has become aged by the time it is posted to the USCIS website, it generally 

remains accurate since processing times don’t normally change that much from month to month. 

Office of Citizenship 

Question: Citizenship Test 

Please provide an update on USCIS’ efforts to conduct a records study to determine pass-fail rates on the 

revised citizenship test and look at its impact on different demographic groups, as compared to the 

previous version of the test. Please share any results or findings that are already available. 

Response: USCIS contracted with ICF International to perform a record study to determine the 

pass rate for the redesigned naturalization test. In addition to this record study data collection, 

USCIS will have comparative data - comparing the current test with the previous test – in late 

summer 2011. USCIS will disseminate key findings in the fall. 

In the meantime, USCIS continues to review and make publicly available data on applicant 

performance on the current test, which is available here: 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoi 

d=6c40ec90d8668210VgnVCM100000082ca60aRCRD&vgnextchannel=6c40ec90d8668210Vgn 

VCM100000082ca60aRCRD 

Office of Transformation Coordination 

Question: “I-130 Automatization” 

Suggestions: 

1.- Documents should be able to be uploaded along with application. 

2.- Repeated information from the I-130 should automatically flow to g-325a. 

Response: Generally, USCIS ELIS, the online case management system, will require an 

applicant to scan and upload supporting documentation when he or she submits an electronic 

application. Similarly, in the event additional information or documentation is required after the 

electronic application and supporting document has been filed, USCIS will issue an electronic 

Request For Evidence (RFE) that will require documents to be scanned and uploaded in USCIS 

ELIS. Form I-130 will enter the USCIS ELIS online case management system in a subsequent 

release. Certain information may be pre-populated into Form I-130 from prior benefit requests or 

from supporting forms. 

- 4 - 


Office of Policy & Strategy 

Question: Child Status Protection Act (CSPA) 

a) INA 204(l) allows a beneficiary to proceed with the adjudication of a petition or application after the 

petitioner has died, assuming all eligibility requirements are satisfied. How does this law intersect with 

the Child Status Protection Act? For example, would a child who is eligible for 204(l) relief in the 

following circumstances still be able to claim protection under the CSPA? 

Petition was filed by US citizen parent on behalf of unmarried child under 21 in 2000. 

Petitioner died in 2001 while petition was pending. Beneficiary is still unmarried but is over 21. 

Can the child still claim immediate relative status when applying for 204(l) relief? 

Response: Nothing in section 204(l) changes the way the CSPA applies to a given case. Given a 

scenario where the petitioner for an immediate relative child beneficiary was denied due to the death 

of the petitioner prior to enactment of 204(l), the beneficiary may file an untimely motion (with 

proper fee) based upon the provisions of 204(l). Assuming the child meets the requirements of 

204(l) and such motion and the underlying petition are granted, the beneficiary would remain 

eligible for classification as an immediate relative child pursuant to CSPA, assuming he or she 

remains unmarried to the same extent as the beneficiary would be had the petitioner not died. 

 

Petition was filed by LPR parent on behalf of unmarried child under 21 in 2000. Priority date for 

F-2A became current and beneficiary filed for adjustment of status in 2005. Petitioner died 

while application was pending. Applicant is now over 21 and has filed a motion to reopen the 

revoked petition, pursuant to the December 2010 USCIS memo. Can the child still claim the F- 

2A category? 

Response: Again, nothing in section 204(l) changes the way the CSPA applies to a case. Given 

this scenario, USCIS will first determine whether the beneficiary remained eligible for F2A 

classification at the time the adjustment was filed pursuant to CSPA. To wit, whether the 

beneficiary had a “CSPA age” under 21 and sought to acquire LPR status within one year of visa 

availability. If so, then, assuming the beneficiary meets the eligibility criteria for 204(l) and remains 

unmarried, the applicant may remain eligible for adjustment in the F2A classification. 

 

Petition was filed by US citizen parent on behalf of married son in 2000. Married son has 

derivative child. Petition was approved. Priority date became current in 2008 and principal 

beneficiary filed for adjustment of status. Derivative son was still under 21 using CSPA 

formula. Principal beneficiary died in 2008 while application was pending. Derivative child is 

still unmarried but is now over 21 using CSPA. Derivative child can now take advantage of 

204(l) relief. Can child still be considered a derivative and what is the impact of CSPA’s oneyear 

filing requirement? 

Response: Again, nothing in section 204(l) changes the way the CSPA applies to a case. Eligibility 

for CSPA in this type of scenario involves consideration of many variables. Given the fact pattern 

presented, whether the derivative sought to acquire LPR status within one year of visa availability is 

contingent upon when the principal beneficiary passed away with respect to when a visa became 

available. In the scenario provided above, the visa [first] became available in 2008 and the 

beneficiary died in 2008, indicating that the derivative did not have a full year of visa availability at 

the time the principal beneficiary died. Section 204(l) provides, simply, that the alien’s eligibility is 

to be determined as if the qualifying relative had not died. So the alien’s effective age, for CSPA 

purposes, will still be determined by subtracting the number of days between the filing and initial 

approval of the visa petition from the alien’s age at the time the visa number first became available. 

- 5 - 


As such, if the derivative in this scenario had filed an application for adjustment prior to the 

principal beneficiary’s death, and the adjustment was denied as a result of the death, and the 

derivative may file an untimely motion based upon 204(l) and proceed with derivative adjustment as 

a child based on a CSPA age under 21 that was locked in by having sought to acquire within one 

year. If, however, the derivative had not sought to acquire, the derivative would need to seek 

humanitarian reinstatement of the original petition. To ensure that the alien has the full year to seek 

adjustment, USCIS will consider the alien to have met the one-year filing deadline if the alien 

applies for adjustment or a visa within one year from the date USCIS reinstates the approval. If the 

priority date has regressed, however, the alien’s CSPA age will be recalculated again based on the 

date the priority date is reached again, just as would have been the case if the qualifying relative had 

not died. 

Also, if the one year period had already lapsed before the principal beneficiary died, reinstating the 

approval of the petition under section 204(l) does not give the derivative beneficiary a new one year 

period. 

b) When section 204(l) does not apply, because the petitioner died after approval of the petition and 

before any application was filed, the petition may be reinstated based on humanitarian grounds. Does the 

CSPA apply in those cases? 

Petition was filed by LPR parent on behalf of unmarried child under 21 in 2003. Petitioner died 

in 2005 after petition was approved. Priority date for F-2A became current in 2008 while 

beneficiary was still under 21. Petitioner filed for humanitarian reinstatement later in early 

2008. Motion/request was approved last month. Beneficiary/applicant is now over 21. Can he 

still claim the F-2A category? What about the one-year filing requirement? 

Petition was filed by US citizen on behalf of married sibling in 2000. Married sibling has 

derivative child. Petition was approved. Principal beneficiary died in 2004. Priority date 

became current in 2007 while derivative child was under 21, but the law at the time did not 

allow for the filing of a motion to reinstate. Law enacted on October 28, 2009 and derivative 

beneficiary filed to reinstate revoked petition. At the time, derivative was over 21 using 

biological age but under 21 using CSPA age. Motion/request is approved last month. Does 

CSPA apply and what is effect of one-year filing requirement? Same facts only child was over 

21 when priority date became current in 2007 but under 21 using CSPA. Child is over 21 using 

CSPA when filed to reinstate petition and motion is still pending. 

Response: Again, section 204(l) does not change CSPA. CSPA was enacted for the purpose of 

protecting children from aging out because of administrative delays in adjudicating visa petitions. It 

is well established that CSPA does not protect children from aging out on account of other issues, 

such as lengthy waits for visa availability, and in preference cases requires the child to seek to 

acquire lawful permanent residence within one year of visa availability. As such, USCIS does not 

find that the effects of 204(l), enacted more than 7 years later, supersede the intended purpose of 

CSPA. Rather, 204(l) provides, simply, that the alien’s eligibility is to be determined as if the 

qualifying relative had not died. So the alien’s effective age, for CSPA purposes, will still be 

determined by subtracting the number of days between the filing and initial approval of the visa 

petition from the alien’s age at the time the visa number first became available. If, using this 

calculation, the alien’s CSPA age is under 21, the reinstatement of a visa petition approval will be 

treated as the start of the one-year application window under section 203(h)(1)(A). Thus, an alien 

will not lose CSPA eligibility solely because of the qualifying relative’s death. But if the alien’s 

CSPA age, under the standard statutory calculation, was already over 21, then of course the alien’s 

case will be governed by section 203(h)(3) and Matter of Wang, 25 I&N Dec. 28 (BIA 2009). 

- 6 - 


c) Can a child over 21 (but under 21 using CSPA and still in the F-2A category) opt out of automatic 

conversion to the F-1 category when the LPR petitioner naturalizes? The statute appears to provide this 

opt-out relief only for children in the F-2B category. 

Response: Yes. When a direct beneficiary who is initially in the F2A classification turns 21 and 

the LPR petitioner subsequently naturalizes, the order of operations is treated as follows: (a) upon 

turning 21, the child automatically converts to the F2B; (2) upon petitioner’s naturalization, the F2B 

automatically converts to the F1 classification; (3) the beneficiary may make a written request to 

USCIS to “opt-out” of the conversion to F1 and remain in the F2B classification; (4) the CSPA age 

calculation may be applied to determine if the beneficiary has a “CSPA age” under 21. 

d) Does the Service intend to modify its narrow interpretation of CSPA’s one-year requirement after the 

three unpublished BIA decisions interpreted the requirement as “seeking” LPR status and not “filing for” 

LPR status? 

Response: No. USCIS maintains that seeking to acquire lawful permanent residence is 

accomplished through one of the following methods: (a) filing Form I-485, Application to Register 

Permanent Residence or Adjust Status; (b) submitting Form DS-230 to begin consular processing 

for an immigrant visa petition abroad or (c) by being the beneficiary of Form I-824, Application for 

Action on an Approved Application or Petition. Permanent resident status can only be obtained 

through a grant of adjustment of adjustment of status or admission as a LPR by DHS (the latter 

based upon DOS’s issuance of an immigrant visa), therefore any action taken to prepare for or 

consider obtaining LPR status outside of these processes does not constitute “seeking” since the 

result can only be obtained by virtue of filing an application with USCIS or submitting an 

application with DOS. 

e) If a beneficiary filed/moved for humanitarian reinstatement and it is denied, can he or she re-file with 

more supporting documentation? The 30-day period within which to file a motion to re-open or 

reconsider has already passed. 

Response: A denied beneficiary is give one “bite of the apple” for each possible administrative 

recourse to an unfavorable decision. However, if the humanitarian reinstatement request was denied 

prior to enactment of 204(l), the beneficiary may file a new request for humanitarian reinstatement 

in light of the additional ameliorative considerations given in light of this legislation. 

f) When does the Service anticipate publishing regulations governing the CSPA? Section 204(l)? 

Response: They are currently being developed. Giving the standard process for developing and 

reviewing regulations, USCIS cannot predict a date for publishing the NPRM. 


Question: SSI Benefits 

Please provide an update on the inter-agency efforts to identify elderly and disabled refugees who are 

being cut-off of their SSI benefits and what is being done to target/serve this population to ensure that 

they naturalize within the 7 year time limit. 

- 7 - 


Response: USCIS hosted several meetings and teleconferences with relevant federal government 

partner agencies, including the Social Security Administration (SSA), the Health and Human 

Services Administration on Aging and Office of Refugee Resettlement (ORR), the Office of 

Management and Budget (OMB), the White House, Community Based Organizations (CBOs) 

and advocacy groups. The focus of the meetings was brain storming ideas for expanding 

outreach to refugees and certain noncitizens regarding the expiration of SSI benefits for those 

persons who are only eligible to receive SSI benefits for up to seven years unless they become 

U.S. citizens. The meetings gave USCIS the opportunity to discuss the issues as well as assess 

the resources of each agency for supporting outreach efforts. 

USCIS also conducted a national engagement on April 21, 2011 which included CBOs, advocacy 

groups, State Refugee Coordinators, area agencies on Aging, Congressional Staff, English as a 

Second Language (ESL) teachers, representatives of SSA local offices, and other state and local 

government stakeholders. This interagency collaboration and work with community partners 

allowed USCIS to educate stakeholders and respond to their questions about the expiration of SSI 

benefits, as well as discuss the available resources each agency has to support outreach efforts. 

USCIS consistently uses its Community Relations Officers (CROs) to disseminate information 

about this issue to their respective stakeholders and community based organizations and 

encourage stakeholders to use USCIS’s citizenship resources. 

The Citizenship Public Education and Awareness Initiative promotes awareness of the rights, 

responsibilities, and importance of United States citizenship, and the free naturalization 

preparation resources available to permanent residents and immigrant-serving organizations. This 

awareness and education campaign is very important in raising awareness about the citizenship 

process so that refugees and noncitizens can start the process of applying for citizenship as early 

as possible. For USCIS citizenship resources, please see below. 

The new Citizenship Resource Center www.uscis.gov/citizenship is a centralized resource for 

citizenship preparation and education, with a variety of free resources for learners, teachers, and 

organizations. A free copy of the Civics and Citizenship Toolkit is available at 

www.citizenshiptoolkit.gov. All Office of Citizenship educational materials can be found on the 

Citizenship Resource Center at www.uscis.gov/citizenship. 

FOD Follow-up: USCIS will prioritize the processing of Form N-400, Application for 

Naturalization, for (1) individuals who are within one year or less of having their SSI benefits 

terminated and (2) whose Form N-400 is pending four months or more from the date of receipt. 

An applicant for naturalization who will soon lose SSI benefits should request that the application 

be expedited and inform USCIS two ways. When filing Form N-400, noncitizens receiving SSI 

benefits can notify USCIS by (1) placing the acronym “SSI” at the top of first page of the Form 

N-400 and (2) including a copy of their most recent SSA letter identifying when their SSI benefits 

will be terminated. If an applicant has already filed an N-400, the application has been pending 

for more than four months, and the applicant is within less than a year of the termination of SSI 

benefits, the applicant must notify USCIS by contacting the local USCIS Field Office to provide 

a copy of their most recent SSA letter identifying when their SSI benefits will be suspended or 

terminated. 

- 8 - 


Field Operations Directorate 

Question: Lost Record of G-28 on File 

There have been instances of USCIS loosing our G-28 at filing or midway through the process (i.e. - only 

client got receipts and when we call for inquiry they say no G-28 on file or we get receipts so clearly a G- 

28 exists and then we call and they say no G-28 on file or we never get approval notice.) What should an 

attorney do? 

Response: The G-28 should not have been lost; it should be both in the file and record in our 

systems. ISOs should contact the attorney or representative of record; however, on occasion this 

does not happen. USCIS believes that these are isolated incidents and would welcome examples. 

We have asked field leadership to remind ISOs that represented applicants should not be 

contacted without first notifying the attorney and any notices or correspondence should also be 

sent to the attorney. 

Question: N-600s for Individuals Residing Abroad 

N-600 – It is our understanding that an the N-600 applicant (a U.S. citizen) must attend an oath ceremony 

at the district office. If the N-600 applicant is abroad, can the oath ceremony take place at the U.S. 

Embassy or at the USCIS office abroad? Also, please advise how filing jurisdiction is determined for an 

N-600 applicant who resides abroad. 

 

Question: N-600s for Individuals Residing Abroad 

It is our understanding that an the N-600 applicant (a U.S. citizen) must attend an oath ceremony at the 

district office. If the N-600 applicant is abroad, can the oath ceremony take place at the U.S. Embassy or 

at the USCIS office abroad? Also, please advise how filing jurisdiction is determined for an N-600 

applicant who resides abroad. (L. Rose) 

Response: Generally, applicants residing abroad file form N-600K, Application for Citizenship 

and Issuance of Certificate under Section 322 of the Immigration and Nationality Act (INA). 

Under section 322(d) of the INA, a child of a member of the Armed Forces of the United States, 

who is residing abroad with the member on official orders, may take his or her oath of allegiance 

abroad. USCIS recommends that a child eligible under 322(d) file Form N-600K with the USCIS 

overseas office having jurisdiction over the child’s overseas residence, or with the USCIS 

Nebraska Service Center. 

Generally, a child residing in the United States who acquired citizenship automatically under 

section 320 of the INA should file Form N-600, Application for Certificate of Citizenship, to 

obtain a certificate of citizenship. There is no provision of law that allows a child who 

automatically acquired under section 320 of the INA to take the oath of allegiance abroad. The 

provision of law cited above allowing certain children of member of the military to take the oath 

of allegiance abroad only applies to cases under section 322(d) of the INA, not to section 320 of 

the INA. 

Question: N-648 Expiration 

During the February 18 USCIS webinar on N-648s, there was a question about whether N-648s expire. 

We were told that USCIS would research this question and provide a definitive response at a later date. 

Our understanding, dating back to the April 1999 policy guidance, is that the only time restriction on the 

N-648 is that it be submitted within six months of when it was completed by the medical professional, 

- 9 - 


and that if it is filed within the six month timeframe, it remains valid and does not expire. Can you please 

clarify if this has changed? 

Response: Form N-648 must be submitted within six months of when Form N-648 was 

completed and signed by the medical professional. Although the regulations require the applicant 

to submit Form N-648 at the time of filing Form N-400, and failure to do so may delay the time 

for the adjudication of the Form N-400, USCIS also realizes that certain circumstances, including 

a medical professional’s unavailability or the applicant’s lack of available funds, may prevent the 

concurrent submission of Form N-648 and Form N-400. In such cases, the Form N-648 must 

have been completed within six months of the interview date and applicants requesting a 

disability exception should present the Form N-648 to the USCIS Office at the beginning of the 

interview. The USCIS Officer must consider Form N-648 even if it is submitted after the filing 

of Form N-400 and must not draw any negative inference regarding the applicant’s medical 

condition as a result of the late filing. Once a valid and timely Form N-648 is submitted to 

USCIS, the form does not expire. 

Service Center Operations Directorate 

Question: Recognition of ECFMG Certification 

Our members continue to report occasional Requests for Evidence on immigrant and nonimmigrant 

petitions, soliciting evidence that a physician beneficiary’s foreign medical degree is the equivalent of a 

U.S. medical degree despite the fact that the initial petition filing included a certificate from the 

Educational Commission of Foreign Medical Graduates (ECFMG). We respectfully request that USCIS 

issue guidance to the field clarifying that an ECFMG Certificate is sufficient evidence of the foreign 

medical degree’s equivalence to a U.S. degree, as evaluation of the foreign degree is part of the ECFMG 

certification process that is a prerequisite for a foreign-educated physician’s admission to U.S. Graduate 

Medical Education. We would also ask that USCIS remind adjudicators that equivalency to a U.S. 

medical degree is also sufficiently demonstrated through evidence that the physician beneficiary has 

passed all three steps of the U.S. Medical Licensing Examination and holds an unrestricted medical 

license in the state of intended employment. See Adjudicator’s Field Manual, Chapter 22.2(j)(1)(D). 

Therefore, a formal credentials evaluation is not required in circumstances where this alternative test for 

medical degree equivalency is satisfied. 

We will break this question/recommendation into two sections. 

a) Our members continue to report occasional Requests for Evidence on immigrant and nonimmigrant 

petitions, soliciting evidence that a physician beneficiary’s foreign medical degree is the equivalent of a 

U.S. medical degree despite the fact that the initial petition filing included a certificate from the 

Educational Commission of Foreign Medical Graduates (ECFMG). We respectfully request that USCIS 

issue guidance to the field clarifying that an ECFMG Certificate is sufficient evidence of the foreign 

medical degree’s equivalence to a U.S. degree, as evaluation of the foreign degree is part of the ECFMG 

certification process that is a prerequisite for a foreign-educated physician’s admission to U.S. Graduate 

Medical Education. 

Response: USCIS would like to note that an equivalency evaluation, including a certificate from 

the Educational Commission of Foreign Medical Graduates (ECFMG) is advisory in nature and 

the final determination continues to rest with USCIS (See Matter of Caron International, 19 I&N 

- 10 - 


Dec. 791 (Comm. 1988), Matter of Sea, Inc. 19 I&N Dec. 817 (Comm 1988), and Matter of Ho, 

19 I&N Dec. 582 (BIA 1988).). USCIS appreciates this recommendation and may consider this 

request for future policy guidance. 

b) We would also ask that USCIS remind adjudicators that equivalency to a U.S. medical degree is also 

sufficiently demonstrated through evidence that the physician beneficiary has passed all three steps of the 

U.S. Medical Licensing Examination and holds an unrestricted medical license in the state of intended 

employment. See Adjudicator’s Field Manual, Chapter 22.2(j)(1)(D). Therefore, a formal credentials 

evaluation is not required in circumstances where this alternative test for medical degree equivalency is 

satisfied. 

Response: We will remind adjudicator’s that the topic of United States Medical Degree (MD) 

Equivalency of Foreign Medical Degrees is discussed in AFM Chapter 22.2(j)(1)(D) and 

introduced in the June 17, 2009 Memo titled, Revisions to Adjudicator’s Field Manual (AFM) 

Regarding Certain Alien Physicians Chapter 22.2(b) General Form I-140 Issues (AFM Update 

AD09-10). 

The AFM and this memo outline when a foreign medical degree may qualify as the 

equivalent of a U.S. MD degree and thus an advanced degree for EB2 purposes, which 

includes the scenario outlined in the above question. 

Question: VIBE Requests for Evidence 

Please provide clarification on the use of the VIBE system to verify an employer’s business identity. 

There are a number of scenarios in which an existing and legitimate employer may not have up-to-date 

Dun & Bradstreet data (e.g., a hospital system that is acquired by another entity, resulting in a name 

change; a hospital staffing company with multiple incorporated entities nationwide whose financial data 

is consolidated into one corporate entity and does not reflect the individual entities in D&B). In these 

types of situations, petitioners are receiving RFEs that lead to lengthy and costly delays in the employer’s 

ability to meet its staffing needs. Petitioners can certainly provide the kind of documentation requested in 

VIBE RFEs (e.g., leases, invoices, payment receipts, other documentation of the business’ operations) as 

part of the initial filing. However, this would seem to be at odds with VIBE’s purported goal of 

eliminating the need to submit extensive paperwork with each petition. Please provide guidance on what 

type of evidence petitioners might submit with initial petitions that will avoid the issuance of a VIBEbased 

RFE. Also, please clarify whether USCIS retains information obtained through VIBE-based RFEs 

so that the same petitioner need not respond to the same RFE on multiple filings. This again seems 

counter to VIBE’s purpose of reducing redundancy of information collection. 

Response: As USCIS has stated previously, VIBE is an additional tool for ISOs to use in the 

overall adjudicative process. USCIS will not deny a petition based upon information from VIBE 

without first giving the petitioner an opportunity to respond to USCIS’s concerns. USCIS will 

issue an RFE or a Notice of Intent to Deny (NOID) if there is derogatory or contradictory 

information found in VIBE that is material to the benefit requested and not outweighed by 

evidence submitted with the petition. The ISO will make a final decision based on the totality of 

the circumstances. 

- 11 - 


USCIS would recommend that petitioners who have very recently made significant changes 

ffecting their business operations (such as being acquired by a new company or moving to a new 

location) submit documentary evidence to explain the corporate change and substantiate the 

nature and identity of the new entity. Doing so may prevent the issuance of an RFE to clarify the 

petitioner’s validity. The goal for VIBE to eventually reduce the redundancy of RFEs related to 

the validity of a petitioner remains and USCIS continues to work to meet that goal. A recent 

technical enhancement to the VIBE system provides USCIS with a new capacity to relay 

information to adjudicators at all Service Centers about evidence received in response to an RFE. 

However, at this time, petitioners must respond directly to each RFE issued by USCIS --failure to 

respond directly to USCIS could result in denial. 

Question: I-539 – H-4 Cases 

When an I-539 is submitted for spouse and two siblings as derivative H-4s and one sibling ages out, the 

CIS will grant the child who ages out an H-4 status only until his 21 st birthday. If included in the I-539 

application is a second child who will not turn 21 years old, will the second child’s H-4 be granted only 

until the older child turns 21 years old? If so, are we required to file a separate I-539 for the younger 

child to avoid this scenario? Along those lines, will the spouse included with the I-539 also be granted 

only until the 21 st birthday of the oldest child? It seems that to limit all derivative beneficiaries on the 

same I-539 to the shortest time available to any one of the beneficiary unfairly reduces the options to the 

other beneficiaries or forces them to file two separate applications and pay two separate filing fees. 

Response: The practice at each service center, in accordance with regulations, is that extensions 

granted to family members on the same application be for the same period of time. The shortest 

validity period granted to any one member of the family would be the same for all on that 

application. 

Specifically, 8 CFR 214.1.(c)(2) states in part: Extensions granted to members of a family group 

must be for the same period of time. The shortest period granted to any member of the family 

shall be granted to all members of the family. 

Generally, when an H-4 nonimmigrant requests an extension of status, the validity period will be 

the same as that of the principal. However, if one of the applicants is a dependent child who will 

turn 21 before the principal alien’s stay expires, the validity period for that applicant and any coapplicants 

will extend until one day prior to the dependent child’s 21 st birthday. 

Question: H-1B Cap Exemption 

a) Petitioner’s Election on Cap Exemption 

We would like to reiterate our request that USCIS issue guidance to the field clarifying that petitioners 

may elect to file H-1B petitions as subject to the annual fiscal quota even if the petitioner has previously 

been approved as cap exempt or otherwise has a basis for claiming cap exemption. We understand that 

USCIS wishes to approve as many petitions as possible on a cap exempt basis in order to maximize the 

number of H-1Bs that remain available to cap subject petitioners. However, given the current uncertainty 

with regard to USCIS’ standard for adjudicating cap exemption cases - uncertainty that has not been 

resolved as a result of the April 28, 2011 Interim Policy Memo, which did not articulate a new standard 

for cap exemption - many petitioners are forced to rely upon cap subject petitions in order to ensure any 

kind of predictability in planning for their workforce needs. There has been no APA notice and comment 

- 12 - 


ulemaking, or even informal policy guidance explaining USCIS’ refusal to honor the petitioner’s request 

to be counted toward the H-1B cap, yet several of our members report that their cap subject petitions have 

been treated as though filed with a request for cap exemption despite having requested a cap number. We 

request that, at least until USCIS promulgates the new standard on cap exemption mentioned in the March 

18, 2011 Press Release, that VSC honor an H-1B petitioner’s request to be counted against the cap in all 

cases. 

Response: Please note that INA 214(g)(5) states: 

The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant 

alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who -- 

(A) is employed (or has received an offer of employment) at an institution of higher education (as 

defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related 

or affiliated nonprofit entity; 

(B) is employed (or has received an offer of employment) at a nonprofit research organization or 

a governmental research organization; or 

(C) has earned a master's or higher degree from a United States institution of higher education (as 

defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)), until the 

number of aliens who are exempted from such numerical limitation during such year exceeds 

20,000. (emphasis added). 

Please also note that the page 19 of the Form I-129 instructions state: 

“Regardless of work locations, the following types of petitions should always be sent to the 

California Service Center…3. H-1B petitions where the employer is statutorily exempt from the 

cap…” As such, these petitions should not be filed at the Vermont Service Center. 

b) Notation on I-797 Regarding Cap Exempt vs. Cap Subject Approval 

USCIS should consider amending its I-797 Approval Notices for H-1B to provide an annotation as to 

whether the approved petition has been counted against the annual fiscal quota, or not. In many instances, 

a beneficiary is personally unaware of whether s/he has been counted toward the “H-1B cap” since that is 

indicated only on the I-129 petition filed by the employer and the beneficiary is not always given access 

to this information or informed of whether the petitioner is cap exempt. This can cause confusion when 

the beneficiary subsequently transfers to another employer and the new petitioner is uncertain whether the 

beneficiary has yet been counted toward the cap. Since the beneficiary is almost always given the I-797 

Approval Notice for his/her petition, an annotation on that notice would clarify for the beneficiary (and 

future employers/attorneys) how that petition had been adjudicated. This would also benefit USCIS by 

providing an easily identifiable “marker” of cap exemption that ISOs could use when verifying whether a 

petition is entitled to deference on the issue of cap exemption under the April 28, 2011 Interim Guidance 

Memo. 

Response: USCIS thanks IMGT for their suggestion regarding modifications to the Form I-797, 

Approval Notice. We will examine the feasibility of this under our current systems, as well as 

under the umbrella of Transformation. 

c) Clarification on “Employed At” Cap Exemption Cases 

- 13 - 


As is noted in the plain language of INA section 214(g)(5)(A-B), when the Service determines that a cap 

exemption applies, the exemption attaches to the entity that has been identified as a “related or affiliated 

nonprofit entity” and to all H-1B employees at that entity. The cap exemption is not contingent upon the 

H-1B beneficiary’s participation in any specific activity performed within that entity. This is true 

regardless of whether the employee will be employed directly by the qualifying nonprofit entity, or 

employed by a third party to work at the qualifying nonprofit entity. Nonetheless, USCIS’ policy 

guidance (See Interoffice Memorandum from Michael Aytes, Associate Director for Domestic 

Operations, USCIS “Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on § 103 

of the American Competitiveness in the Twenty-first Century Act of 2000” (HQPRD 70/23.12) (June 6, 

2006)) and the recently revised I-129 H-1B Data Collection Supplement Form both specify that a 

beneficiary who will be employed by a third party petitioner to work at a qualifying cap exempt entity 

must demonstrate that the beneficiary’s “job duties. . .directly and predominantly further the normal, 

primary, or essential purpose, mission, objectives, or function of the qualifying institution, namely higher 

education or nonprofit or government research.” This restrictive standard is wholly unsupported by the 

statute and has a profoundly negative impact on the healthcare sector, in particular. For example, under 

this standard, a physician employed by a physician practice group working at a nonprofit hospital 

affiliated with an institution of higher education would not qualify for H-1B cap exemption because the 

physician’s job duties (i.e., treating patients) would not “directly and predominantly” further higher 

education. The inclusion of this restriction is an ultra vires contravention of the enabling statute and we 

request that USCIS issue clarifying guidance retracting this policy and amend the H-1B Data Collection 

Supplement Form accordingly. (IMGT) 

Response: We are presently examining this issue within the context of the comprehensive 

USCIS policy review. We appreciate IMGT bringing this issue forward and we will give full 

consideration to the position stated by IMGT in developing additional policy guidance. We also 

anticipate clarifying this issue in the AC21 proposed rulemaking which is currently under 

development, and stakeholders will have the opportunity to submit comments following the 

publication of the rule in the Federal Register. 

Question: I-797 Notices for J-1 Waivers Mailed to Wrong Attorney 

The Vermont Service Center (VSC) consistently sends I-797 Notices of Action (receipt notices and 

approval notices) for J-1 waiver cases to attorneys other than the attorney of record named on the G-28. It 

appears that the receipt notices and approval notices are being mailed to the immigration attorney within 

the law firm whose last name comes first alphabetically even if that attorney is not the attorney of record 

for the particular case (please refer to attached chart). We have raised this issue with VSC in the past and 

have been told that the problem lies with the Department of State’s Waiver Review Division failing to 

give VSC the correct attorney name. However, since the Waiver Review Division has failed to correct 

this problem despite repeated requests, we would like to ask: (1) Would USCIS please contact the DOS 

Waiver Review Division and work with it to resolve this issue; (2) Would VSC please re-double its 

efforts to ensure that the I-797 notices for J-1 waiver cases are sent to the attorney who is “cc”d on the 

DOS recommendation letter and whose name appears on the accompanying G-28; (3) Is there anything 

that we, as practitioners, can do to facilitate this process (e.g., sending another copy of the signed G-28 to 

the VSC, etc.). 

- 14 - 


Response: The Vermont Service Center (VSC) is aware of the issue and has taken the following 

steps to ensure that the attorney of record is properly notified: 

The VSC is seeking to amend the process for uploading this information electronically so 

that the name of the correct attorney is recorded in USCIS’ database when more than one 

attorney is listed on the Department of State (DOS) recommendation; 

The VSC has contacted DOS to request that waiver recommendations clearly indentify 

the correct attorney of record; and 

The VSC has provided additional training to officers processing the waiver requests to 

ensure that the correct information is recorded on all notices 

Question: I-485 TRIG/Material Support Cases 

Please provide an update on I-485 TRIG/material support cases that are still pending and what efforts are 

being made to re-review those cases, particularly to determine whether there actually is a material support 

basis to hold the case. CBOs were previously instructed to contact the HQ Service Center Operations unit 

with requests for re-review of cases known to be pending on this basis. However, advocates have 

followed this procedure, but have not received responses to inquiries that have been submitted. Many of 

these cases have been pending with the NSC for 6 or more years. The I-485 Liberian refugee hold cases, 

for example, were initially put on hold in 2007 apparently for Liberian refugees who had been merely 

living in the Ivory Coast prior to entry into the U.S. Interviews of some applicants were done in 

December 2008 or 2009, and then cases lay dormant until recently, when the remaining 255 cases have 

started being transferred to local offices for interviews. 

Given the broad sweep of this hold (i.e., Liberian residence in the Ivory Coast prior to entry into the 

U.S.), can you indicate whether some/most of the other TRIG/MS cases on hold relate to broad categories 

of people? Shouldn’t the applicant at least be given specific information as to why his/her case is on hold 

instead of that the problem is merely “a material support issue?” 

The Service’s inability to adjudicate these TRIG/MS cases within any reasonable timeframe is a blight on 

the reputation of an agency that is fortunately becoming more and more accountable to its stakeholders. 

We urge HQs to have Service Centers re-review these cases to determine if at least some cases can be 

taken off hold because the basis for the hold was in error or the alleged membership or MS to an 

organization is no longer pertinent because the group is no longer considered a Tier III organization. 

Response: The service centers have taken the initiative to conduct ongoing reviews of cases on 

hold for TRIG to determine if they can be cleared for adjudication. Cases may be cleared for 

adjudication for a number of reasons, such as a change in a group’s status, a new exercise of the 

Secretary’s discretionary exemption authority, new information relating to country conditions or 

to specific applicants, and updated legal interpretation. As a result of these reviews, last year, the 

service centers released approximately 3,500 cases previously on TRIG hold. Such reviews are 

ongoing, and cases will be released for adjudication as appropriate. We endeavor to respond to 

all queries on cases that are believed to be on hold for TRIG in a timely manner. If you are aware 

of specific queries that have not received responses, please let us know so that we can resolve the 

requests for information. 

Specific reference is made in the question to Liberian cases. Please note that certain Liberian 

refugee adjustment of status cases were placed on hold for review due to issues relating to the 

civil war. Approximately 90 percent of the Liberian cases that were put on hold for review have 

- 15 - 


een cleared for adjudication, and the remaining approximately 250 cases, which have been 

determined to require an interview, have been transferred to field offices to conduct the 

interviews. 

- 16 - 


Meeting Invitation 

 

Quarterly National Stakeholder Meeting 

Wednesday, June 29, 2011 @ 2:00 pm (EDT) 

Tomich Conference Center 

111 Massachusetts Ave, NW 


The USCIS Office of Public Engagement invites any interested parties to participate in a quarterly 

national stakeholder meeting on Wednesday, June 29, 2011 at 2:00pm (EST). The purpose of this 

engagement is for individual participants to raise issues regarding agency operations and to aid the 

agency in identifying systemic issues. USCIS is seeking agenda items and questions from individual 

stakeholders on specific operational concerns, policies, and/or procedures. Relevant subject matter 

experts from agency Program Offices and Directorates will attend the meeting based on suggested 

agenda items and stakeholder questions. 

To Participate in the Session 

Any interested parties may participate in this event in person or by telephone. To respond to this 

invitation, please contact the Office of Public Engagement at public.engagement@dhs.gov by June 

28, 2011, and reference the following in the subject line of your email: 

• If you plan to attend in person, please reference “Quarterly – In Person” 

• If you plan to attend by phone, please reference “Quarterly – Phone” 

Please also include your full name and the organization you represent, if any, in the body of the 

email. 

To Submit Agenda Items 

• If you would like to submit agenda items and questions you must RSVP via email and 

attach a Word document or PDF with suggested items. All submissions should be received 

by the Office of Public Engagement by COB Friday, May 27, 2011. 

We look forward to engaging with you! 



Overview 

• This presentation will cover three different types of 

humanitarian benefits related to the I-130, Petition for 

Alien Relative. 

• Conversion to I-360 for Surviving Spouses 

• Section 204(l) of the Immigration and Nationality 

Act 

• Humanitarian Reinstatement 


Conversion to I-360 for 

Surviving Spouses 


Background of I-360 Conversion 

• Section 568(c) of the FY 10 DHS Appropriations 

Act Public Law 111-83, enacted on 10/28/09, 

amended existing benefits for surviving spouses 

of U.S. citizens. 

– The DHS Appropriations Act amended the 

widow/widower provisions to remove the 2 year 

marriage requirement. 


Background of I-360 Conversion (Cont’d) 

• An I-130 spousal petition: 

– that was pending when the U.S. citizen spouse 

died is adjudicated as a pending I-360 

widow/widower petition. 

– that was approved when the U.S. citizen spouse 

died is treated as an approved I-360 

widow/widower petition. 

• The surviving spouse must meet the legal 

requirements for widow/widower classification and 

must not have remarried. 


Who Can Receive I-360 Conversion 

Benefits? 

• The surviving spouse, if: 

• The deceased was a U.S. citizen, 

• The deceased spouse had already filed Form I- 

130 on behalf of the surviving spouse, 

• The marriage to the citizen was bona fide, 

• The surviving spouse and citizen were not legally 

separated at the time of death, and 

• The surviving spouse has not remarried. 



Benefits? (Cont’d) 

• Children of widows/widowers are eligible for 

derivative classification. 

– They can be included in the approved I-360 and 

follow to join the principal. 



Benefits? (Cont’d) 

• When the widow/er’s approved or pending I-130 

converts to an approved or pending I-360, the 

children are included, regardless of whether the 

U.S. citizen step-parent had filed separate 

petitions for them. 

– If the children are able to adjust based on the I- 

360, any previously submitted I-130, in their 

behalf, will be terminated. 


How is I-360 Conversion Requested? 

• Conversion need not be requested, as it occurs 

automatically for both pending and approved 

I-130 petitions. 

• The beneficiary does, however, need to inform 

USCIS of the petitioner’s death, and provide a 

death certificate. 


Other Ways to Obtain Widow/Widower 

Classification via Form I-360 

If the surviving spouse did not have a pending or approved I- 

130 on file when the U.S. citizen spouse died, he/she may 

file Form I-360 in the following situations, if: 

• A spousal I-130 was denied before 10/28/09 

• Form I-360 must be filed on or before 10/28/11 

• A spousal I-130 was never filed and the citizen’s death 

occurred before 10/28/09 

• Form I-360 must be filed on or before 10/28/11 


Other Ways to Obtain Widow/Widower 

Classification via Form I-360 (Cont’d) 

• A spousal I-130 was never filed and the citizen’s death 

occurred on or after 10/28/09 

• Form I-360 must be filed within two years of the citizen’s 

death 

– Surviving spouses should file Form I-360 with the 

appropriate Lockbox, as designated on that form’s 

instructions. 


Service Centers’ Decision and 

Notification 

• When an I-130 is with Service Center Operations 

(SCOPS) and is converted to Form I-360: 

• Service Centers will send the beneficiary a written 

decision notifying him/her of the conversion. 

• If not eligible for conversion: 

• The I-130 will be denied/revoked and a notice of 

the decision will be sent to the beneficiary stating 

the reason(s) for denial/revocation. 


Questions? 


Section 204(l) 


Background of 204(l) 

• Section 568(d) of the FY 10 DHS 

Appropriations Act created INA section 204(l) 

to provide benefits to other surviving relatives, 

including the spouses of deceased lawful 

permanent residents. 

– For family-based petitions, INA 204(l) covers 

principal and derivative beneficiaries. 

– It also covers the adjustment application (IF 

eligible to adjust) and related applications. 


Who Can Receive Benefits Under 

204(l)? 

• This law was enacted on October 28, 2009 and 

applies to any petition adjudicated on or after that 

date - even if the case was filed before that date. 

• While eligibility for relief under 204(l) is not limited to 

I-130 cases, this presentation will focus on I-130 

cases. 



204(l)? (Cont’d) 

• In the context of family-based petitions, the following 

surviving beneficiaries are potentially eligible for benefits 

under INA 204(l): 

• The principal beneficiary of an Immediate Relative or 

family-based preference visa petition 

• The derivative beneficiary of a family-based preference 

visa petition 

• The family-based petition may have been pending or 

approved when the petitioner or principal beneficiary 

passed away 


Who Can Receive Benefits Under 204(l)? 

(Cont’d) 

• Further, to qualify for 204(l) benefits, the surviving beneficiary must: 

• Have resided in the U.S. when the qualifying relative 

(petitioner or principal beneficiary) died; and 

• Continue to reside in the United States on the date of the 

decision on the pending petition or application. 

• If one derivative beneficiary meets the residence requirements, the 

petition can be approved/reinstated which means the remaining 

derivative beneficiaries also obtain the benefit. 

• A Form I-864, filed by an eligible substitute sponsor, may be required 

for most family-based petitions. 



204(l)? (Cont’d) 

• All other I-130 eligibility requirements must be met 

through the submission of all required regulatory 

documentation. 

• Beneficiary must have a qualifying relative willing to 

act as the substitute sponsor on Form I-864, 


• No fee is necessary. 

• No official form exists. 


Qualifying Relative 

– Spouse, 

– Parent, 

– Mother-in-law or father-in-law, 

– Sibling, 

– Child who is at least 18 years of age, son or daughter, 

– Son-in-law or daughter-in-law, 

– Sister-in-law or brother-in-law, 

– Grandparent 

– Grandchild 

– Legal Guardian 


Qualifying Relative, cont. 

• Must be a United States Citizen, National or Lawful 

Permanent Resident 

• 18 years of age or older 

• Domiciled in any state of the US, District Columbia 

or any US territory/possession 

• Must demonstrate the means to maintain annual 

income at least 125% of Federal Poverty Line 

– Form I-864 is not adjudicated until the beneficiary is 

undergoing the visa issuance or adjustment of status 

process 


How is 204(l) Requested? 

• For pending petitions: 

• Send your request for 204(l) consideration, 

accompanied by the death certificate and 

evidence of qualifying U.S. residence, to the office 

that has the relative petition. 

• For approved petitions where USCIS has not sent a 

notice of automatic revocation: 

• Send request to the USCIS office that approved 

the I-130 OR to the USCIS office with jurisdiction 

of a pending I-485. 


How is 204(l) Requested? (Cont’d) 

• For petitions that were denied or where USCIS sent a notice 

of automatic revocation, 204(l) eligibility can be requested in 

the following ways: 

• For petitions denied/revoked before 10/28/09: 

• An untimely motion can be submitted on Form I- 

290B with fee, or fee waiver request. 

• Motion should be accompanied by the death 

certificate and evidence of qualifying U.S. 

residence. 

• The motion should be filed with the appropriate 

Lockbox 


How is 204(l) Requested? (Cont’d) 

• For petitions denied/revoked on or after 10/28/09: 

• A request for Government motion can be submitted. 

• The request for Government motion should be 

accompanied by the death certificate and evidence 

of qualifying U.S. residence. 

• No official form exists for requesting Government 

motions. 

• There’s no fee for a Government motion. 

• The request for Government motion should be sent 

to the office that denied or revoked the petition. 


Service Centers’ Decision and 

Notification 

• 204(l) determinations on pending petitions, or 

approvals returned from the Department of State: 

• When 204(l) eligibility is established: 

• Service Centers will send the beneficiary an 

electronically-generated approval/reaffirmation 

notice. 

• If 204(l) eligibility is not established: 

• The I-130 will be denied/revoked and a notice 

of decision will be sent to the beneficiary that 

discusses the reason(s) for denial/revocation. 


Questions? 


Humanitarian 

Reinstatement (HR) 


Background 

• An approved petition is revoked automatically upon the 

death of the petitioner 

• The regulations allow USCIS to exercise discretion and 

reinstate the approval of a family-based immigrant visa 

petition, for humanitarian reasons 

– By regulation, only automatically revoked family-based 

petitions are eligible for consideration 

• USCIS determines whether to exercise discretion on a 

case-by-case basis, given the humanitarian 

considerations of the particular case 


Who Is Eligible? 

• By regulation, the principal beneficiary of an 

approved family-based immigrant visa petition 

– The petition must have been approved prior to the 

death of the petitioner 

• Derivative beneficiaries entitled to accompany or 

follow to join principal beneficiary 


How to Apply? 

• Principal beneficiary makes request 

– No official form 

– Letter of request and supporting documentation is sent 

to the USCIS office that rendered the most recent 

decision 

• Beneficiary must have a qualifying relative willing to 

act as the substitute sponsor on Form I-864, 


• No fee 

• Request may be submitted at any time 


Relatives Eligible to be Substitute Sponsors 

for Form I-864 

– Spouse, 

– Parent, 

– Mother-in-law or father-in-law, 

– Sibling, 

– Child who is at least 18 years of age, son or daughter, 

– Son-in-law or daughter-in-law, 

– Sister-in-law or brother-in-law, 

– Grandparent 

– Grandchild 

– Legal Guardian 


Substitute Sponsors (Cont’d) 

• Must be a United States Citizen, National or Lawful 

Permanent Resident 

• 18 years of age or older 

• Domiciled in any state of the US, District Columbia 

or any US territory/possession 

• Must demonstrate the means to maintain annual 

income at least 125% of Federal Poverty Line 

– Form I-864 is not adjudicated until the beneficiary is 

undergoing the visa issuance or adjustment of status 

process 


What to Submit 

• Required letter from the Beneficiary requesting 

reinstatement describing the reasons for the 

request 

• Evidence of substitute sponsor’s status in the US 

• Form I-864 (must contain original signature of 

substitute sponsor) 

• Evidence to support humanitarian reason for 

request 


Helpful Documentation 

• Evidence of relationship with substitute sponsor 

• Death certificate of the petitioner 

• Copy of approval notice (Form I-797) 

• Any correspondence received from the 

Department of State 


Factors Considered 

• The impact of revocation on the family unit in the United States, 

especially on U.S. citizen or LPR relatives or other relatives living 

lawfully in the United States; 

• The beneficiary’s advanced age or poor health; 

• The beneficiary’s having resided in the United States lawfully for 

a lengthy period; 

• The beneficiary's ties to his or her home country; and 

• Significant delay in processing the case after approval of the 

petition and after a visa number has become available, if the 

delay is reasonably attributable to the Government rather than 

the alien. 


Processing Requests 

• No standard processing time 

• Expedited handling may be requested and is held to the same 

standards as any pending application/petition 

• If a favorable decision is made, 

– Approval is reinstated and reaffirmed 

– Petition is forwarded back to the NVC or housed in beneficiary’s A- 

file 

– Notification is sent to the estate of the deceased in care of the 

substitute sponsor 

• If unfavorable decision is rendered, 

– Petition remains revoked 

– Notice is sent to the estate of the deceased in care of the substitute 

sponsor with an explanation of why the request did not meet the 

criteria 

– Decision cannot be appealed 

– Motion to reconsider may be filed with fee 


Who Is Not Eligible for Humanitarian 

Reinstatement under INA 205? 

• Principal, family-based beneficiaries are not eligible if 

the petitioner’s death occurred before the petition was 

approved 

– Such beneficiaries may seek benefits under 204(l) if they 

meet the residence requirements 

• Derivative beneficiaries, regardless of when the 

petitioner or principal beneficiary passed away and 

regardless of the place of residence at the time of death. 

- A derivative may seek benefits under 204(l) when 

the principal passed away if they meet the residence 

requirements 


What are the Differences Between INA 

204(l) and 8 CFR 205.1 Reinstatement? 

• INA 204(l) provides for reinstatement on: 

• Pending and approved petitions 

• Family-based principal and derivative beneficiaries 

Please Note: INA 204(l) requires the principal/ 

derivative beneficiary to be residing in the U.S. when 

the qualifying relative died. 


What are the Differences Between INA 204(l) 

and 8 CFR 205.1 Reinstatement? (Cont’d) 

• 8 CFR 205.1 provides for reinstatement on: 

• Family-based petitions that were approved while 

the petitioner was alive, but approval was revoked 

automatically when the petitioner died, regardless 

of where the beneficiary was residing. 

• 8 CFR 205.1 does not cover: 

• Any pending family-based petitions 

• Derivative beneficiaries (if the principal beneficiary 

died) 


When are INA 204(l) and 8 CFR 205.1 

Available? 

• Both the 204(l) and 205.1 options are available on 

family-based cases where: 

• Surviving relative is the principal beneficiary; 

• Petition was already approved when the petitioner 

died; and 

• Principal beneficiary resided in the U.S. when the 

petitioner died. 

• Unless exempt under 8 CFR 213a.2(a)(2)(ii), a legally 

binding I-864 will be required from an eligible 

substitute sponsor. 


Only INA 204(l) is Available … 

• Only the 204(l) option is available if the: 

• Surviving relative is the derivative beneficiary; 

and/or 

• Petition was pending or approved when the 

petitioner died. 


Only 8 CFR 205.1 is Available … 

• Only the 8 CFR 205.1 option is available if the: 

• Surviving relative is the principal beneficiary of a 

family-based petition 

• The petition was approved when the petitioner 

died. 

• The surviving relative was not residing in the U.S. 

when the petitioner died. 


Questions? 


USCIS Service Center Stakeholder Meeting 

Humanitarian Reinstatement - September 27, 2011 

I-360 Conversion for Surviving Spouse 

• Questions 

o About notifying USCIS of death, if it is a consular processing case, do we notify 

USCIS wherever the case is? E.g. Consulate? NVC? 

• Answer: You should contact the NVC or consular post as a first step – 

whatever office has jurisdiction at the time of the event. The State Dept 

has made corresponding changes to the Foreign Affairs Manual to handle 

the automatic conversion process. 9 FAM 42.42 Note 5.1, A – B, effective 

10/4/2010. 

o Is there a memorandum between DOS and USCIS to allow for the I-130 to be 

converted to I-360 at the consulate? 

• Answer: It was USCIS’ intent to have the consular post be able to handle 

the conversion to the I-360 instead of having the petition be sent back to 

USICS for revocation and then conversion. This is why the FAM was 

amended to include 9 FAM 42.42 Note 5.1. It was recently brought to 

USCIS’ attention that not all consulates are aware that they can do this 

automatic conversion at post. 

o When the I-360 is initially filed after the death of spouse, is a psychological 

report helpful to show PTSD/emotional harm of the widow? 

• Answer: Question is confusing automatic conversion and VAWA. For 

automatic conversion, eligibility requirements are only based on the bona 

fides of the marriage and contingent upon not being legally separated 

when petitioner died and not remarrying. 

o Question about need for substitute sponsor. 

• Answer: No need for a substitute sponsor for the I-864 with the 

automatic conversion I-360. 

Section 204(l) of the Immigration and Nationality Act 

• Questions 

o If someone has an I-485 pending based on approved I-130, and during the I-485 

adjudication process the petitioner dies, what is the appropriate next step? 


• Answer: You can do the following: 

• Notify the USCIS office that has the I-485 of the death by making 

an Infopass appointment. 

• You can also attend the interview with the death certificate and 

other necessary documents for 204(l). 

o When do you need to file the I-290B? 

• Answer: When the petition was denied/revoked pre-enactment, prior to 

10/28/09. 

o Question regarding adjudication of I-601 waivers for unlawful presence, etc, 

when the petitioner has died and the beneficiary can benefit from 204(l). Are 

there special procedures being implemented for the waiver process if one is 

required? 

• Answer: No special procedures being implemented, and the timeframe 

for adjudication is unchanged. If there is a genuine emergency that 

would fall under the established expedite procedures, USCIS would be 

willing to expedite. 

o Question about the requirement that the principal beneficiary must be residing 

in the U.S. to benefit from 204(l) -- what if the beneficiary is undocumented? 

What if the beneficiary habitually lives in the U.S., but is traveling abroad 

temporarily when the petitioner dies? What if the beneficiary habitually lives 

abroad, but is in the U.S. on the day petitioner dies? 

• Answer: 

• Person does not necessarily have to be here in lawful status. 

• Eligibility will come down to the facts of each case. The only 

question is: where is the person’s place of residence? This is 

defined by statute as the person’s actual principal dwelling place. 

If the person’s actual principal dwelling place is in the U.S. and 

they were abroad at the time of the petitioner’s death, then they 

could still show that they were ‘residing’ in the U.S. in spite of a 

temporary trip abroad. 

o Question regarding derivative beneficiaries who meet residency requirements, 

but others derivatives who do not – can you provide an example of this to 

clarify? 


• Answer: Example - LPR files I-130 for unmarried son or daughter and the 

son or daughter has 4 children. The 4 children are the derivative 

beneficiaries. Let’s say that two of the children live in the U.S. with the 

principal beneficiary, and two of the children live abroad. Either the 

petitioner or the principal beneficiary passes away. All of the derivative 

children can benefit. The children living in the US can adjust, and the 

children who are living abroad can follow to join. 

o Under 204(l), if the primary beneficiary qualifies and all of her kids are living 

abroad, do the kids qualify? 

• Answer: Yes. If they are admissible and still children, they can consular 

process. 

o When do you make the request for 204(l) when the priority date is not yet 

current? 

• Answer: Notify NVC of the death ahead of time. They will add it to the 

file. 

o How long is it taking for 204(l) cases to be adjudicated? What is the approval 

rate? 

• Answer: 

• Processing Times: These cases do not arise with such regularity 

that there is a standard processing time; USCIS tries to process as 

quickly as possible. You can always make request for expedited 

processing if it falls within expedite criteria. 

• No statistics on approval rates. 

Humanitarian Reinstatement (HR) and Requests for Expeditious Adjudication 

• Questions 

o If the primary beneficiary is alive and has derivatives and applies for HR, are the 

derivatives included? 

• Answer: Yes. 

o For HR, if the case is at NVC or a consular post, where do you send request? 

• Answer: Send to NVC or to the USCIS office that has jurisdiction over the 

original petition. 


o Are there any specific deadlines for 204(l) and HR? 

• Answer: Only deadline is for widow petition when an I-130 was never 

filed - 

• If spouse died before 10/28/09, you need to file the I-360 petition 

within 2 years of enactment. In other words, the deadline is 

10/28/2011. 

• If the spouse died after 10/28/09, the I-360 petition must be filed 

within 2 years of citizen’s death. 

o Can CSPA be applied to 204(l) and HR? 

• Answer: Same calculations are applied under the CSPA. 204(l) does not 

change CSPA analysis. Go to Q&A on website from late June 2011 

national stakeholder engagement for more information. 


Meeting Invitation 

 

 

 

Service Center Operations 

Monthly Stakeholder Teleconference 

The USCIS Service Center Operations Directorate invites interested stakeholders to participate in 

the next Monthly Stakeholder Teleconference scheduled for Tuesday, September 27, 2011 from 

2:00pm to 3:30pm Eastern Time. These engagements present an opportunity for stakeholders to 

receive current information from service center officials on particular topics of interest. The 

California Service Center will host the September teleconference with assistance from the Vermont 

Service Center. 

The topic for this teleconference will be Form I-130, Petition for Alien Relative (Humanitarian 

Relief) and we will address issues including I-360 Conversion for Surviving Spouse, Section 

204(l) of the Immigration and Nationality Act, Humanitarian Reinstatement and Requests for 

Expeditious Adjudication. 

Engagement Date Topic Deadline to Submit Agenda Items 

September 27, 2011 I-130 Humanitarian Relief Friday, September 2, 2011 

Agenda Items: Please submit agenda items to California Service Center Community Engagement 

Officer Ana Rili at ana.rili@dhs.gov by COB Friday, September 2 nd . 

RSVP: If you would like to participate in the September teleconference, please provide your full 

name and the organization you represent to Ana Rili at ana.rili@dhs.gov by COB Tuesday, 

September 20 th and reference “September 27 th Teleconference” in the subject line. 

For additional information, please contact Ana Rili by email. 

We look forward to engaging with you! 


June 1, 2010 


United States Citizenship & Immigration Services 

20 Massachusetts Ave., NW 


VIA e-mail: opefeedback@uscis.dhs.gov 

Re: AILA Comment on USCIS Draft Memorandum: “Approval of 

Petitions and Applications after the Death of the Qualifying Relative; New 

INA Section 204(l) updates the AFM with New Chapter 20.6 and an 

Amendment to Chapter 21.2(h)(1)(C)” 

The American Immigration Lawyers Association (AILA) hereby submits 

the following comments to the above-named draft memorandum. 

AILA is a voluntary bar association of more than 11,000 attorneys and law 

professors practicing, researching and teaching in the field of immigration 

and nationality law. The organization has been in existence since 1946 

and is affiliated with the American Bar Association. Our mission includes 

the advancement of the law pertaining to immigration and nationality and 

the facilitation of justice in the field. AILA members regularly advise and 

represent businesses, U.S. Citizens, U.S. lawful permanent residents, and 

foreign nationals regarding the application and interpretation of U.S. 

immigration laws. We appreciate the opportunity to comment on the 

proposed rule and believe that our members’ collective expertise provides 

experience that makes us particularly well-qualified to offer views that we 

believe will benefit the public and the government. 

We now provide the following comments to the above-named draft 

memorandum. 

Introduction 

AILA appreciates the opportunity to provide comment on the recently 

released draft policy memorandum, “Approval of Petitions and 

Applications after the Death of the Qualifying Relative; New INA Section 

204(l) updates the AFM with New Chapter 20.6 and an Amendment to 

Chapter 21.2(h)(1)(C).” The memorandum clarifies a number of areas of 

concern to our members. We welcome the recognition that the grant of 

benefits under §204(l) is not prohibited in cases arising prior to the date of 

AILA InfoNet Doc. No. 10060363. (Posted 06/03/10)

enactment. This treatment comports with Supreme Court precedent on the issue of retroactivity. See 

Langraf v. USI Film Prod., 511 U.S. 244 (1994); Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 

(2006). Additionally, we are pleased that the agency has decided, in the spirit of the new legislation, to 

allow untimely motions to reopen petitions, adjustment of status applications, or waiver applications 

denied before October 28, 2009 if §204(l) would now allow approval. 

The interpretation of the meaning of “qualifying relative” is a reasonable interpretation of the statute. 

Also reasonable is the treatment of waivers. By noting that the qualifying relative has died and deeming 

the death to be the functional equivalent of a finding of extreme hardship, the agency does not interfere 

with the statute’s prohibition against the use of criteria for adjudicating petitions or applications based 

solely on the lack of a qualifying relationship. AILA agrees that waivers that call for the exercise of 

discretion may be decided based on a weighing of all favorable factors against adverse discretionary 

factors. 

AILA is also encouraged by the procedure announced in the draft memorandum regarding “not in the 

public interest” denials. Based on the language of the statute, as well as the humanitarian nature of the 

legislation, it is clear that the discretionary denial power for approvals that are not in the public interest 

should be used extremely sparingly. The consultation requirement is a welcome safeguard against 

inconsistent adjudication. 

Having outlined the positive aspects of the draft memorandum, AILA also wishes to provide 

constructive comment on some areas which could lead to confusion for applicants and adjudicators. 

These concerns are outlined below. 

When INA §204(l) Applies 

The statute requires that the alien described in §204(l)(2) had a residence in the United States at the time 

of the death, and continues to reside in the United States. The draft memorandum uses somewhat 

different language in describing this, stating that the “alien seeking the benefit” is required to meet the 

residence requirement. Draft Memorandum at 3. This may lead adjudicators to believe that all derivative 

beneficiaries are each required to meet the residence requirement. As long as the principal beneficiary 

meets the residence requirement and the case is approved, the derivatives should be able to immigrate 

together with the principal beneficiary. Likewise, if the derivative beneficiary (spouse of EB immigrant 

for example) meets the residence requirement, it should not be necessary for each and every derivative 

beneficiary to meet the residence requirement. In other words, as long as one beneficiary (whether 

principal beneficiary or main derivative beneficiary) meets the residence requirement, that should 

suffice. Otherwise, family members may end up being separated. 

The draft memorandum also states that “Section 204(l) of the act applies to any petition or application 

adjudicated on or after October 28, 2009, even if the petition or application was filed before that date.” 

Draft Memorandum at 3. Because the provisions of 568(d) do not expressly include in or exclude from 

section 204(l)’s ambit individuals whose qualifying relative died before the effective date of the act, this 

also should be explicitly stated. The AFM Ch. 20.6(c)(1) should be amended as follows: 

AILA InfoNet Doc. No. 10060363. (Posted 06/03/10) 

2

Section 204(l) of the act applies to any petition or application adjudicated on or after October 

28, 2009, even if the petition or application was filed before that date and even if the death 

occurred before that date. 

Any beneficiary or derivative beneficiary who has chosen to continue his or her residence after the 

effective date of the new law, thus subjecting himself or herself to the new and more generous legal 

regime, is qualified to seek benefits under §204(l) despite the occurrence of the death prior to the 

enactment. See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006). The applicability of §204(l) to a 

case involving a pre-enactment death should be clearly stated. 

Widow(er)s of Citizens 

It is noted in the draft memorandum on page 3 that, “Paragraph (a) of this chapter does not apply to a 

Form I-130 filed by a citizen on behalf of his or her spouse. Upon the death of the citizen petitioner, the 

Form I-130 is converted under 8 CFR 204.2(i)(1)(iv) to a widow’s Form I-360.” It is also noted on page 

4 that, “As noted, 204(l) applies to immediate relative petitions, as well as several other petitions and 

applications. The widow of a citizen, however, does not need to rely on section 204(l) of the Act to 

obtain approval of a Form I-130 that the citizen filed before dying.” These statements are accurate with 

respect to the beneficiary of an I-130 who continues to qualify as a widow(er). For immediate relative 

spouses who have remarried, however, the I-130 will not automatically convert to an I-360 due to the 

remarriage. The language of INA §201(b)(2)(A)(i) precludes eligibility if the spouse remarries, 

effectively taking them out of the self-petitioning “widow(er)” category. Despite the inability to file a 

widow(er) I-360 or have the previously filed I-130 automatically convert, however, a remarried 

widow(er) still retains eligibility under the clear language of INA §204(l), provided the residence 

requirements are met. The draft memorandum also omits reference to K-1 widow(er)s, and clarification 

on their inclusion is needed. 

Widow(er)s Who Remarry 

A widow(er) whose U.S. citizen spouse filed an I-130 petition before dying, and who remarries prior to 

being admitted to lawful permanent resident status, still qualifies as an “alien described” in INA 

§204(l)(2)(A) because the alien, “immediately prior to the death of his or her qualifying relative, was— 

(A) the beneficiary of a pending or approved petition for classification as an immediate relative (as 

described in section 201(b)(2)(A)(i).” INA §204(l)(2)(A). By fixing the point of eligibility before the 

death, the statute clearly contemplates eligibility for those who were spouses of U.S. citizens 

immediately prior to the death of the qualifying relative. The statute does not require the widow(er) to 

continue to be the spouse of a U.S. citizen; only that he or she “was” an immediate relative at the time of 

death, and was the beneficiary of a petition. Because INA §204(l) does not restrict aliens on the basis of 

whether or not they have remarried, some widow(er)s may be eligible only for §204(l). To clarify the 

applicability of §204(l) to widow(er)s who have remarried, we respectfully suggest the following 

amendment to the draft AFM Ch. 20.6(b) and Ch. 20.6(c)(2): 

(b) Widow(er)s of Citizens. Paragraph (a) of this chapter does not apply to most Form I-130 

petitions filed by a citizen on behalf of his or her spouse. Upon the death of the citizen petitioner, 

the Form I-130 is converted under 8 CFR 204.2(i)(1)(iv) to a widow’s Form I-360. In some 


3

cases, however, as in the case of a widow(er) who remarries and who is therefore ineligible for 

the I-360 benefit, 204(l) may be considered provided all statutory criteria are met. 

… 

(c)(2) Widow(er)s of Citizens. As noted, section 204(l) applies to immediate relative 

petitions, as well as several other petitions and applications. The widow of a citizen, 

however, does not generally need to rely on section 204(l) of the Act to obtain approval of a 

Form I-130 that the citizen filed before dying. Under section 201(b)(2)(A)(i) of the Act and 8 

CFR 204.2(i)(1)(iv), the Form I-130 is automatically converted to a widow(er)’s Form I-360, 

when the citizen spouse dies. Please refer to Chapter 20.6(c)(4) concerning the effect of 

section 204(l) on the widow(er)’s ability to seek a waiver of inadmissibility, after the death of 

the citizen spouse. 

In the case of an alien who was the beneficiary of an immediate relative I-130 petition filed 

by the citizen petitioner, but who has remarried prior to obtaining the status of a lawful 

permanent resident, the alien can no longer be considered a self-petitioning “widow(er)”. The 

second sentence of section 201(b)(2)(A)(i) allows a widow(er) to remain an immediate 

relative for I-360 purposes “only until the date the spouse remarries.” Because the language 

of 204(l) does not contain such a restriction, however, a widow(er) of a U.S. citizen who has 

remarried, but who was the beneficiary of a pending or approved petition for immediate 

relative immediately prior to the death of his or her deceased spouse, may claim eligibility 

under section 204(l). 

Under established canons of statutory interpretation, none of the words of the statute are to be deemed 

meaningless. Because §204(l) was passed in the same legislative act as the removal of the two year 

marriage requirement of the widow(er) category, legislators are deemed to have known about the other 

provisions. Therefore, because §204(l) includes all who were “immediate relatives” as defined in 

§201(b)(2)(A)(i) immediately prior to the death, any interpretation that makes their inclusion in §204(l) 

meaningless cannot be supported. These proposed revisions will clarify to officers the benefits under 

§204(l) to those widow(er)s who have remarried, and give proper meaning to their inclusion in §204(l). 

K-1 Widow(er)s 

As noted in the December 2, 2009 Neufeld memorandum, “Additional Guidance Regarding Surviving 

Spouses of Deceased U.S. Citizens and their Children (FY2010 DHS Appropriations Act),” “the K-1 

nonimmigrant will also be deemed the beneficiary of a Form I-360 if the K-1 nonimmigrant now 

qualifies as a widow(er).” Neufeld Memorandum at 6. This treatment should be extended to K-1 

widow(er)s who are eligible under §204(l). This could include a K-1 widow(er) who remarried, or a K-1 

widow(er) who requires a waiver of inadmissibility. A brief note in this section stating that K-1 

nonimmigrants are deemed to be the beneficiary of a petition under §204(l) if the K-1 nonimmigrant 

now qualifies under §204(l). The I-129F petition filed by the petitioner should be “deemed” to be an 

approved petition for classification as an immediate relative (as described in §201(b)(2)(A)(i)), provided 

the marriage between the K-1 petitioner and the K-1 nonimmigrant occurred prior to the death of the 

petitioner. 


4

Humanitarian Reinstatement 

The section covering humanitarian reinstatement carries the potential for confusion. AILA believes that 

the clear language of the statute removes §204(l)-eligible beneficiaries from the rules constructed around 

humanitarian reinstatement for the following reasons. 

The draft memorandum states that, “New section 204(l) addresses only petitions and applications that 

are still pending at the time of the petitioner’s death; it does not directly address revocation or 

reinstatement.” Draft Memorandum at 7–8. The language of §204(l), however, applies to beneficiaries 

of “pending or approved petitions,” so this portion of the draft memorandum is not accurate. Section 

204(l) does address approved petitions. The draft memorandum goes on to state that “it would generally 

be appropriate to reinstate the approval of an immediate-relative or family-based petition if the alien was 

residing in the United States when the petitioner dies and if the alien continues to reside in the United 

States.” Draft Memorandum at 8. There are several problems with this statement. First, standards such 

as “it would generally be appropriate” do not give adjudicators sufficient guidance to apply the law to 

this type of scenario. Second, the statement ignores other categories of §204(l) beneficiaries such as 

employment-based immigrants, refugees/asylees, and U and T nonimmigrants. The draft memorandum 

specifically mentions employment-based petitions as not coming within the humanitarian reinstatement 

rules, and that such cases should be held in abeyance. Nevertheless, the clear language of §204(l) applies 

to beneficiaries of pending or approved petitions of all the types listed. 

The enactment of §204(l), as well as court decisions, call into question the applicability of humanitarian 

reinstatement in the context of §204(l)-eligible beneficiaries. For example, the derivative beneficiary of 

an employment-based petition (Form I-140) that was pending at the time of the principal beneficiary’s 

death, was the “derivative beneficiary of a pending … petition,” and under the draft memorandum, 

would come within §204(l) and be adjudicated notwithstanding the death. In other words, the pending I- 

140 could be approved despite the principal beneficiary’s (the worker’s) death. Oddly, under the draft 

memorandum’s formulation, the derivative beneficiary of an already-approved I-140 would have the 

case held in abeyance pending issuance of policy guidance on this topic, because there are no rules for 

humanitarian reinstatement in place for employment-based cases. This is unnecessary due to the plain 

language of the statute. 

Section 204(l) contains two main sections: the “In General” provisions of §204(l)(1), and the “Alien 

Described” provisions of §204(l)(2). An alien who is described in §204(l)(2) may have certain relief 

granted under §204(l)(1). Aliens described are beneficiaries of pending petitions, and also approved 

petitions. Whether the petition was pending or already approved at the time of death does not matter; the 

beneficiaries are aliens described in the section. Section 204(l)(1) determines what action the Secretary 

shall take with respect to the aliens described. If the alien described resided in the U.S. at the time of the 

death and continues to reside in the U.S., such alien may have the petition described in paragraph (l)(2) 

adjudicated notwithstanding the death of the qualifying relative. The language of §204(l)(1) provides 

that the adjudication shall cover “such petition … or an application for adjustment of status…,” thus 

providing for an adjudication of the petition for aliens described who are beneficiaries of pending 

petitions, and for an adjudication of the adjustment of status for aliens described who are beneficiaries of 

approved petitions. Congress would not have provided for an adjustment of status to be adjudicated 

notwithstanding the death if the approved petition underlying the adjustment were allowed to be 

automatically revoked. Thus, it is clear from the statute that automatic revocation of approved visa 

5 


petitions is not contemplated by the statute, and that no humanitarian reinstatement needs to be 

considered in order to adjudicate the adjustment of status application of a beneficiary of an approved 

petition. 

In establishing eligibility for both beneficiaries of pending and approved petitions, and establishing that 

either the petition described or an application for adjustment of status to be adjudicated, Congress 

clearly intended to establish the right to adjudication notwithstanding the death for two categories of 

aliens: 1) beneficiaries of petitions pending at the time of death, who would be eligible for adjudication 

of the petition and the adjustment of status notwithstanding the death; and 2) beneficiaries of petitions 

approved at the time of death, who would be eligible for adjudication of the adjustment of status 

notwithstanding the death. The draft memorandum, with respect to beneficiaries of already-approved 

petitions who are residing in the U.S. and meet the criteria under §204(l), has the potential for causing a 

violation of the statute’s prohibition against adjudicating petitions or applications based solely on the 

lack of a qualifying family relationship. 

The only plausible place for humanitarian reinstatement under the new statutory scheme created by 

§204(l) is where the beneficiary is not an “alien described,” or who either did not reside in the U.S. at 

the time of the death and/or does not continue to reside in the U.S. In the case of an alien who was 

residing outside the U.S. at the time of death, §204(l) plainly does not apply. The alien who was residing 

abroad, therefore only has recourse in the humanitarian reinstatement regulations under current USCIS 

interpretation. The draft memorandum impermissibly imports humanitarian reinstatement rules into the 

new §204(l) statutory regime without statutory basis. 

As stated in the draft memorandum, “Under DHS regulations at 8 CFR 205.1(a)(3)(i)(C), approved 

immediate-relative and family based petitions filed under section 204 are automatically revoked upon 

the death of the petitioner or the beneficiary.” Draft Memorandum at 7. Because §204(l) defines an 

“alien described” as “an alien who, immediately prior to the death of his or her qualifying relative, 

was…,” a petition approved prior to the death could not be automatically revoked, because §204(l) sets 

the eligibility point at the time immediately prior to the death. The automatic revocation regulations 

purport to revoke an approved petition only “upon the death of the petitioner or the beneficiary,” so they 

can be seen as having no operation, because §204(l) preserves the petition the moment before death. 

Therefore, the “immediately prior to the death” language of §204(l) trumps the “upon the death” 

language of the regulations on automatic revocation at 8 CFR §205.1. For the §204(l) eligible 

beneficiary, therefore, automatic termination has no effect on the already approved petition. This holds 

true for all §204(l) eligible beneficiaries, including those who cannot currently avail themselves of 

humanitarian reinstatement. INA §205 also gives the Secretary authority to revoke the approval of any 

approved petition for “good and sufficient cause…,” but does not require the automatic revocation of an 

approved petition. Additionally, §204(l) mandates that the beneficiary of an approved petition “shall” 

have the petition or application for adjustment of status “adjudicated notwithstanding the death of the 

qualifying relative,” and therefore discretionary criteria related to the occurrence of death may not be 

used. The automatic revocation regulation is therefore irrelevant to a §204(l) eligible beneficiary. 

To clarify the applicability of §204(l) to beneficiaries and derivative beneficiaries of petitions approved 

at the time of the death, we respectfully suggest the following amendment to the draft AFM Ch. 

20.6(c)(6): 


6

(6) Humanitarian Reinstatement. Under DHS regulations at 8 CFR 205.1(a)(3)(i)(B) and (C), 

approved petitions are automatically revoked “upon the death” of the petitioner or the 

beneficiary or self-petitioner. New section 204(l), however, fixes the eligibility of beneficiaries 

of pending or approved petitions at a point “immediately prior to the death,” which precedes the 

death, and before the “upon the death” language contained in 8 CFR 205.1. Any alien described 

in 204(l)(2), therefore, who resided in the United States at the time of the death of the qualifying 

relative and continues to reside in the United States, and who was the beneficiary or derivative 

beneficiary of a petition approved while the qualifying relative was alive is not subject to the 

automatic revocation regulation. The petition that was approved will remain valid and unrevoked 

notwithstanding the death of the qualifying relative. In the case of an alien who is not described 

in section 204(l), but on whose behalf a petition was approved before the death, humanitarian 

reinstatement may be considered. 

Leaving the approval in place will avoid anomalous results, such as those potentially caused by the draft 

memorandum. This treatment will also promote efficiency in the adjudication process. A petition that 

has already been approved prior to the death need not be reopened and reinstated. Beneficiaries of 

approved petitions should not be treated less favorably than petitions pending at the time of death. An 

interpretation that leaves approved petitions in place will comport with the plain meaning of the statute, 

and will not interfere with the current USCIS interpretation of the automatic revocation regulations. 1 

It should be noted that the treatment of humanitarian reinstatement requests has been harshly criticized 

by our membership. These requests often languish for years, and are treated as burdensome work by the 

service centers which have no real resources devoted to such requests. Members report that there are not 

sufficient tracking mechanisms for such requests, that agencies involved in the process engage in fingerpointing 

with respect to transfer of cases between agencies, and that once a decision is finally rendered, 

beneficiaries receive cursory and callous adjudications that are apparently not subject to review. AILA 

strongly objects to any §204(l) eligible beneficiary being the subject of humanitarian reinstatement 

procedures. The new §204(l) establishes substantive and procedural rights to adjudication that should 

not fall within the constructs of humanitarian reinstatement. USCIS must revise the draft memorandum 

to reflect the inapplicability of automatic revocation or humanitarian reinstatement to §204(l) eligible 

beneficiaries. AFM Ch. 21.2(h)(1)(C) must also be revised accordingly. 

Waivers 

As noted in the introduction to this comment, USCIS’ interpretation of waivers appears reasonable. By 

noting that the qualifying relative has died and deeming the death to be the functional equivalent of a 

finding of extreme hardship, the agency does not interfere with the statute’s prohibition against the use 

1 While this comment argues that §204(l) is not within the ambit of the automatic revocation regulations due to the plain 

language of the statute fixing eligibility “immediately prior to the death,” it is worth noting that the automatic revocation 

regulations at 8 CFR §205.1 have been found to be ultra vires and invalid. See Pierno v. INS, 397 F.2d 949 (2d. Cir. 1968); 

Leano v. INS, 460 F.2d 1260 (9th Cir. 1972); Hootkins v. Napolitano, CV-07-05696 (C.D. Cal. 2009). Nothing in INA §205 

authorizes automatic revocation. Rather, the Secretary may only revoke the approval of a petition for “good and sufficient 

cause,” based on careful review of the individual facts of the case. 


7

of criteria for adjudicating petitions or applications based solely on the lack of a qualifying relationship. 

Nevertheless, a few areas are in need of clarification. 

With respect to widow(er)s of U.S. citizens, the draft memorandum notes, “If the citizen dies while the 

Form I-130 is pending, however, the widow(er) can seek approval of a waiver of inadmissibility despite 

the death of the citizen petitioner.” Draft Memorandum at 6. The language “pending” may lead 

adjudicators to believe that a widow(er) cannot seek a waiver of inadmissibility if the petition was in 

fact approved at the time of the death. Therefore, it is recommended that the language be changed to 

“pending or approved.” 

With respect to paragraph 3 of the section on waivers, found on page 6 of the draft memorandum, this 

section may unfairly limit the application of waivers to beneficiaries of those cases involving the grant 

of posthumous citizenship under INA §329A. Because posthumous citizenship under §329A provides 

that the United States considers the person to have been a citizen of the United States at the time of the 

person’s death, this section should be revised to add the following: 

Under section 329A of the Act, relatives of members of the military may request posthumous 

citizenship on behalf of the deceased family member. In such a case, the person granted 

posthumous citizenship is considered to have been a citizen at the time of death, and would 

qualify as a relative for purposes of a waiver where citizenship of the relative is required. 

Adjustment of Status 

The draft memorandum properly notes that, in the adjustment context, “the death of the qualifying 

relative does not relieve the alien of the need to qualify for adjustment of status under section 245(a) of 

the Act,” unless the alien qualifies under INA §§245(i) or 245(k). Draft Memorandum at 5. The draft 

memorandum also correctly states that “an alien whose petition has been approved under new section 

204(l) of the Act, but who is not eligible to adjust status, would not be precluded from applying for an 

immigrant visa at a consular post abroad.” Id. Providing for consular processing of an alien whose 

petition was approved due to the residence requirements having been met prior to petition approval 

comports with the statutory structure of §204(l), even if the alien must physically depart to obtain a visa 

abroad. In the case of an alien who maintained residence in the United States throughout the relevant 

period, but who was physically present abroad for the purpose of consular processing at the time of 

death, however, this section may be viewed by adjudicators in a more restrictive light than necessary. 

Specifically, it should be noted that an alien’s departure to obtain a visa abroad is not the same as 

ceasing residence in the United States, and that a petition that remained pending at the time of the death 

can still be approved despite the alien’s physical presence in another country for the purpose of consular 

processing. 

Further, the guidance on adjustment of status does not provide for situations in which an applicant for 

adjustment of status may be maintaining status at the time of the death. For example, take the case of an 

employment-based adjustment of status applicant. Section 245(c) of the Act requires maintenance of 

status for employment-based adjustment applicants since last entry. If a derivative beneficiary of an 

employment-based I-140 petition is pending adjustment of status at the time of death, but the adjustment 

of status application is not adjudicated until one year after the death, the derivative beneficiary should be 

deemed to have maintained status despite no longer qualifying for status as the nonimmigrant H-4 

8 


dependent. Any failure to maintain status after the death that is based solely upon death of the principal 

beneficiary must be deemed to be an impermissible basis for denial of a §204(l)-eligible derivative 

beneficiary, based on a plain reading of the statute. Section 568(d)(2) of P.L. 111-83 prohibits denial 

founded on “ineligibility based solely on the lack of a qualifying relationship,” and any §245(c) ground 

which purports to bar adjustment based on the death of the qualifying relative, including failure to 

maintain nonimmigrant dependent status based on the death, is inappropriate. Essentially, the legislation 

was intended to place beneficiaries who suffered the death of the qualifying relative back in the place he 

or she would have enjoyed had the death not occurred. Therefore, it is appropriate to ask the question, 

“would the case have been approved at a point immediately preceding the death?” If the answer is yes, 

the case should qualify under §204(l). Finally, a note about the realities of an unexpected death is 

appropriate. By regulation, H and L nonimmigrants are not required to obtain advance parole before 

traveling while an adjustment of status application is pending. If an H or L nonimmigrant travels after 

the death and re-enters in H or L status, despite the entry taking place after the death (such as for funeral 

related travel), during the validity of a prior grant of H or L status, such entry should not be used to deny 

adjustment of status. 

In order to clarify the applicability of §204(l) to beneficiaries and derivative beneficiaries in the 

adjustment of status and consular contexts, we respectfully suggest the following amendment to 

paragraph five (5) of the draft AFM ch. 20.6(c)(3): 

In the adjustment context, the death of the qualifying relative does not relieve the alien 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. Section 245(c) of the act may still make the alien ineligible, if section 245(i) 

or (k) of the Act does not apply to the alien. An alien whose petition has been approved under 

new section 204(l) of the Act, but who is not eligible to adjust status, would not be precluded 

from applying for an immigrant visa at a consular post abroad. 2 The approval of a visa petition 

under section 204(l) of the Act 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. 

Any failure to maintain status after the death that is based solely upon death of the principal 

beneficiary, however, is not a valid basis for denial of a 204(l) eligible derivative beneficiary. 

Section 568(d)(2) of P.L. 111-83 prohibits denial founded on “ineligibility based solely on the 

lack of a qualifying relationship,” and any ineligibility or inadmissibility ground based on the 

death of the qualifying relative, including failure to maintain nonimmigrant dependent status 

based on the death is inapplicable in the 204(l) context. The legislation was intended to place 

beneficiaries who suffered the death of the qualifying relative back in the place he or she would 

have enjoyed had the death not occurred. Therefore, it is appropriate to ask the question, “would 

the case have been approved at a point immediately preceding the death?” If the answer is yes, 

the case should qualify under 204(l). Further, if the alien was pending adjustment of status at the 

time of death, but visa numbers have retrogressed, the alien would continue to be a pending 

adjustment of status applicant until numbers became available, despite the death. Likewise, if a 

pending adjustment applicant who is an H or L nonimmigrant or alien granted an advance parole 

document travels after the death of the relative and re-enters in such status, the adjustment of 


9

status application shall be adjudicated notwithstanding the fact that the travel occurred after the 

death (such as for a funeral or other bona fide reason). 

FN 2—The alien must have been continuing to reside in the United States in order for the 

petition to have been approved. The alien’s departure to obtain a visa would not change the fact 

that the alien met the residence requirements when the officer adjudicated the petition. In the 

case of an alien who maintained residence in the United States throughout the relevant period, 

but who was physically present abroad for the purpose of consular processing at the time of 

death, the case may proceed to approval. Please note that an alien’s departure to obtain a visa 

abroad is not the same as ceasing residence in the United States, as residence and physical 

presence have two separate legal definitions under the Act. A petition that remained pending at 

the time of the death can still be approved despite the alien’s physical presence in another 

country for the purpose of consular processing, if U.S. residence is established through 

documentary evidence. 


It is noted in the draft memorandum that “[t]he death of the qualifying relative does not relieve the alien 

of the need to have a valid and enforceable Form I-864, Affidavit of Support, if required by sections 

212(a)(4)(C) and 213A of the Act and 8 CFR 213a.2. If the alien is required to have a Form I-864, and 

the visa petition is approved under section 204(l), a substitute sponsor will need to submit a Form I- 

864.” Draft Memorandum at 5. 

The draft memorandum properly notes that an affidavit of support is required of applicants under 

§204(l) in cases where the beneficiary would otherwise be subject to the requirement. We also assume 

that in cases where the petitioner never filed an I-864 previously, that those subject to the I-864 

requirement will need a substitute sponsor under §213A(f)(5). For those relatives whose petitioning 

relative did in fact execute an I-864, however, no further I-864 should be required unless income issues 

exist. First, §212(a)(4)(C) requires the petitioner to have executed an affidavit of support, and §213A 

does not specify that death terminates the enforceability of an affidavit. Given the fact that the statute 

provides for specific bases for termination in §213A(a)(3), the omission of death as a termination ground 

is evidence that death was not meant by Congress to terminate enforcement. The plain meaning of the 

statute is met if the petitioner, now deceased, executed an I-864 prior to death. 

Second, §204(l)(1) specifically states that beneficiaries shall have any related applications adjudicated 

notwithstanding the death. An I-864 is certainly a “related application,” and therefore the petitioner’s 

already executed I-864 should be adjudicated and accepted notwithstanding the death. An example of 

this application would be the parent of an adult U.S. citizen who was the beneficiary of an immediate 

relative I-130 petition filing and who concurrently filed an I-485 and I-864. Upon the death of the U.S. 

citizen petitioner before adjudication, §204(l) preserves the eligibility of the parent to adjust status based 

on the already-filed petition (I-130), adjustment application (I-485), and related applications (I-864), 

without the need to seek a substitute sponsor listed on the limited list of relatives at §213A(f)(5). In 

some cases, while the evidence shows the beneficiary is not likely to become a public charge due to 

financial resources, beneficiaries without a relative listed in §213A(f)(5) may be subject to an 

anomalous denial for public charge grounds solely based on lack of the relative. Such a result is not 


10

equired under the new §204(l), as any related application must be adjudicated notwithstanding the 

death. 

In order to clarify the applicability of §204(l) to beneficiaries and derivative beneficiaries who require 

the execution of an I-864 affidavit of support, we respectfully suggest the following amendment to 

paragraph four (4) of the draft AFM ch. 20.6(c)(3): 

The death of the qualifying relative does not relieve the alien of the need to have a valid and 

enforceable Form I-864, Affidavit of Support, if required by sections 212(a)(4)(C) and 213A of 

the Act and 8 CFR 213a.2. If the alien is required to have a Form I-864, and the visa petition is 

approved under section 204(l), a substitute sponsor will need to submit a Form I-864. Pub. L. 

111-83, § 568(e), 123 Stat. at 2187. In the case of a 204(l)-eligible beneficiary whose petitioning 

relative executed a Form I-864 prior to the death, the Form I-864 shall be adjudicated 

notwithstanding the death. If adjudication results in a determination that the financial resources 

of the sponsor were insufficient at the time of the death, even taking into consideration the 

financial resources of the sponsored alien, however, a joint sponsor (as opposed to substitute 

sponsor) may submit a Form I-864. Such joint sponsor would not need to be related to the 

beneficiary in the manner set forth in Section 213A(f)(5). 

Cases Adjudicated before October 28, 2009 

As noted in the introduction to these comments, AILA is pleased that the agency has decided, in the 

spirit of the new legislation, to allow untimely motions to reopen petitions, adjustment of status 

applications, or waiver applications denied before October 28, 2009 if §204(l) would now allow 

approval. The draft memorandum leaves some areas of potential confusion, however, and we suggest 

some minor changes. 

The draft memorandum states that, “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 new section 204(l) would now allow approval of a still-pending petition or application.” Draft 

Memorandum at 8. Because USCIS has used many different terms to describe the ending of benefits due 

to death of a qualifying relative, we suggest that these terms be used in this section in order to ensure 

that all cases subject to negative action prior to the date of enactment be covered. For example, a petition 

approved prior to the date of enactment, and theoretically subject to automatic revocation before 

enactment due to a pre-enactment death that has not been the subject of any formal notice of revocation 

action may be considered by some adjudicators to not have been “denied.” Therefore, we recommend 

that the term “denied” in this section be expanded to include a petition, adjustment application or waiver 

application that was “denied, terminated, or approved and then automatically revoked upon the death of 

the qualifying relative before October 28, 2009 by operation of the regulations,” instead of just “denial.” 

This will clarify the full scope of the motion to reopen authority. Otherwise, applicants with petitions 

approved at the time of death that have not been notified of the automatic revocation by USCIS may find 

it difficult to reopen such an approved petition under the draft memorandum. As discussed in the section 

on humanitarian reinstatement above, those regulations do not apply to a §204(l) eligible beneficiary. 

Additionally, in the case of an approved petition that was subject to automatic revocation, but which has 

not been the subject of any post-approval action, some clarification is needed. For example, an 

11 



INA Section 204(l) Draft Memo 

adjustment of status application may not have been filed at the time of death, but may be able to be filed 

based on the §204(l)-eligible petition now. In such a case, it should be clarified whether the alien should 

file an I-290B motion to reopen the previously approved I-130 petition, combined with a first-time I-485 

application, or whether a new I-485 application is sufficient alone. 

Cases Involving Aliens Approved for Lawful Permanent Resident Status 

Although not addressed by the draft memorandum, there are occasions when USCIS or the Department 

of State is unaware that a death occurred, and grants permanent resident status. In such cases, it would 

be inefficient to reopen and readjudicate the case anew if it would qualify under §204(l). It is suggested 

that the draft memorandum address this issue by giving adjudicators the authority to leave a grant of 

lawful permanent resident status in place if the new §204(l) would provide relief. 

Conclusion 

AILA appreciates the opportunity to comment on this proposed draft memorandum and we look forward 

to a continued dialogue with USCIS on issues concerning INA Sec. 204(1). 

Sincerely, 

THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION 


12

DHS | Telecon Recap: Survivor Benefits under INA §204(l): A Conversation with USCIS 

http://www.dhs.gov/files/programs/cisomb-telecon-survivor-benefits-ina204l.shtm 

Page 1 of 2 

9/12/2011 

Telecon Recap: Survivor Benefits under INA §204(l): A 

Conversation with USCIS 

On This Page: 

• Overview 

• Questions and Answers 

Overview 

On October 28, 2010, Congress enacted two measures designed to provide: 

1. 

2. 

broader self-petitioning rights for all widow(er)s of American citizens and their children; and 

expanded survivors’ rights for other immigrants, set forth in Immigration and Nationality Act (INA) §204(l). 

USCIS issued guidance on INA §204(1) in December 2010, but very little additional public information is available. 

On July 27, 2011, the Citizenship and Immigration Services Ombudsman’s Office (Ombudsman’s Office) hosted a public 

teleconference regarding Survivor Benefits under INA §204(l). Senior Advisor Margaret (Peggy) Gleason interviewed two USCIS 

officials, Office of Policy and Strategy, Family and Immigrant Victims Protection Division, Adjudications Officer Erica Simpson, 

and Michael Sheridan from the Office of Chief Counsel. This teleconference focused specifically on INA §204(l). The elimination 

of the two-year widow penalty was not covered in this teleconference. 

Ms. Gleason provided a brief overview of section 204(l), as summarized below. 

In the past, only widows and widowers of U.S. citizens could continue to seek immigration status despite the death of their 

petitioning spouse. INA §204(l) expands eligibility for immigration survivor benefits to other categories of relatives, as well as to 

T and U non-immigrants, I-730 asylum derivatives, and derivative beneficiaries in employment and family-based preferences. 

Individuals seeking immigration survivor benefits under section 204(l) must have resided in the U.S. at the time of the qualifying 

relative's death; continue to reside in the United States at the time the immigration survivor benefits application is filed; and 

comply with all other residence and physical presence requirements applicable to those requesting Lawful Permanent Resident 

status. In certain circumstances, a survivor who would otherwise qualify under section 240(l), but for residing outside of the U.S. 

at the time of the qualifying relative’s death, might be allowed to request “humanitarian reinstatement” under 8 C.F.R. § 205.1(a) 

(3)(i)(C)(2) if he/she was the beneficiary of a petition approved prior to the death of the qualifying relative. While those seeking 

immigration survivor benefits under section 204(l) are still required to provide an Affidavit of Support (I-864), one may be 

obtained from a substitute sponsor. 

Questions and Answers 

How does an individual apply for reinstatement under section 204(l) if their petition was already 

approved prior to the death of their qualifying relative? 

Ms. Simpson recommended that individuals with an approved petition should seek reinstatement by writing a letter to the USCIS 

office that adjudicated the petition, not where the petition was filed. The letter should specify the applicant is seeking 204(l) 

reinstatement. If an applicant already filed for adjustment of status, a request for reinstatement should be sent to the same office. 

Ms.Simpson suggested that the applicant should also provide documentary evidence as proof of eligibility. No specific documents 

are required, but decisions will be based on preponderance of evidence standard. 

What are the differences between reinstatement under INA §204(l) and humanitarian reinstatement? 

Ms. Simpson noted that humanitarian reinstatement and reinstatement under 204(l) are two different applications. Reinstatement 

under 204(l) is statutorily provided for qualifying applicants through a written request accompanied by documentary evidence such 

as a death certificate, evidence of continuous residence in the U.S., and evidence of a relationship with the qualifying relative. 

Humanitarian reinstatement is discretionary and available to applicants with an approved petition seeking to reinstate the petition 

on humanitarian grounds, regardless of proof of U.S. residence. In addition to a written request, an application for humanitarian 

reinstatement requires evidence supporting the humanitarian reasons for the request, and supporting discretionary factors. 


DHS | Telecon Recap: Survivor Benefits under INA §204(l): A Conversation with USCIS 

http://www.dhs.gov/files/programs/cisomb-telecon-survivor-benefits-ina204l.shtm 

Page 2 of 2 

9/12/2011 

When a survivor's petition is reinstated, does it retain the priority date of the original I-130 petition? 

An applicant's reinstated petition will retain the original priority date. INA §204(l) requires USCIS to proceed with the 

applications as if relative hasn't died. Additionally, Mr. Sheridan shared that an applicant may file their I-485, petition to adjust 

status and a request for reinstatement under INA §204(l) for the underlying petition at the same time, so long as the priority date is 

current. There are variations in approval notices since there is no standard form for reinstatement under section 204(l). However, 

Ms. Simpson said that petition type will be stated on the notice as will the approval date. 

May an applicant seek section 204(l) reinstatement and simultaneously file Form I-485, Application to 

Register Permanent Residence or Adjust Status? 

Ms. Simpson shared that an applicant may simultaneously file Form I-485, Application to Register Permanent Residence or Adjust 

Status and a request for reinstatement under section 204(l), so long as the priority date is current. 

Does the Child Status Protection Act (CSPA) impact those eligible for reinstatement under section 204 

(l)? Specifically, does the one year in which applicants need to apply for permanent residence run from 

the date when the visa first became available, or from the date that the petition was reinstated? 

Ms. Sheridan explained 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 acquire permanent 

residence. 

Must applicants seeking survivor benefits file an I-864, Affidavit of Support? 

A Form I-864, Affidavit of Support is required for certain applicants for permanent residence under 8 C.F.R. § 213a., and anyone 

who is subject to those requirements must provide an Affidavit of Support from a substitute sponsor if the qualifying relative dies. 

This is true even if the relative dies after submitting an Affidavit of Support. Ms. Simpson explained that individuals with 40 

quarters of qualifying employment are exempt from the Affidavit of Support requirement and thus do not need to file an Affidavit 

of Support from a substitute sponsor. No new requirements are created by 204(l) in this regard. 

Callers also had the opportunity to ask Ms. Simpson and Mr. Sheridan questions, many of which are included below. 

May an applicant file section 204(l) reinstatement and humanitarian reinstatement together? What if 

humanitarian reinstatement was already denied, may an applicant still seek reinstatement under section 

204(l)? 

Mr. Sheridan stated that USCIS may consider both types of reinstatement simultaneously. Mr. Sheridan explained that denials of 

requests for reinstatements are not appealable. However, an applicant may seek reinstatement under section 204(l) after 

humanitarian reinstatement was denied, if the applicant is now eligible to do so based upon the expanded eligibility criteria in 

section 204(l). 

If an application for adjustment is pending, and the applicant is in removal proceedings, does an 

Immigration Judge have jurisdiction to reinstate a petition based upon section 204(l)? 

Immigration Judges do not have jurisdiction over visa petitions or their reinstatement. However, Immigration Judges are free to 

grant adjustment when a visa petition is approved and visa number in available. 

Is there a difference between seeking reinstatement for a pending petition versus an approved petition? 

Mr. Sheridan explained that pending and approved petitions are treated differently because USCIS has regulations that provide for 

revocation of an approved petition upon death of a petitioner. Approved petitions must apply for section 204(l) reinstatement to 

continue seeking permanent residence. 

Does death of the petitioning relative constitute "extreme hardship" for waivers of inadmissibility for 

survivor applicants? 

Mr. Sheridan explained that a survivor applicant may seek a waiver for any grounds of inadmissibility. USCIS provides guidance 

on page 11 of their memo (PDF, 16 pages - 102 KB); "[a]s with any other waiver application that is covered by section 204(l), the 

fact that the citizen petitioner has died will be noted in the decision and deemed to be the functional equivalent of a finding of 

extreme hardship." While these determinations are subject to discretion, Mr. Sheridan noted that no actual hardship to the 

qualifying relative needs to be shown if that individual has died. 

This page was last reviewed / modified on September 11, 2011. 


DHS | The Ombudsman's Public Teleconference Series 

http://www.dhs.gov/files/programs/gc_1171038701035.shtm 

1 of 1 7/13/2011 4:22 PM 

On This Page: 

Upcoming Teleconferences 

Recaps from Recent Teleconferences 

The Ombudsman’s Office hosts public teleconferences to share information on specific topics and to hear your comments and suggestions regarding 

your interactions with the U.S. Citizenship and Immigration Services (USCIS). 

Upcoming Teleconferences 

Immigration Survivor Benefits under INA Section 204(l): A Conversation with USCIS 

July 27, 2011 

2:00 – 3:00 EDT 

The Ombudsman's Office invites you to participate in a public teleconference on "Immigration Benefits for Survivors under INA Section 204(l): A 

Conversation with USCIS." Congress enacted this new law on October 28, 2009 and USCIS published a final policy memo implementing the law on 

December 16, 2010. The Ombudsman's Office will interview USCIS officials who work on implementation of this new survivor benefits 

provision. We will reserve time for your questions, comments, and suggstions. 

To participate, please RSVP to cisombudsman.publicaffairs@dhs.gov. 

Participation in these teleconferences is anonymous for callers. 

Recaps from Recent Teleconferences 

Application Processing Times: A Conversation with USCIS Office of Performance and Quality 

Export Controls Requirements on Form I-129: A Conversation with the Commerce Department 

Family-based Retrogression 

Child Status Protection Act (CSPA): How Is It Working For You? 

FOIA: How Is It Working For You? 

Read Recaps from Archived Teleconferences 

This page was last reviewed / modified on July 13, 2011.

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