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

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PM-602-0017: Subject New INA Section 204(l) – Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update 10-51 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. 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 AFM Update 10-51 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. AILA InfoNet Doc. No. 11011061. (Posted 01/10/11)
Page 1 and 2: Copyright © 2011, American Immigra
Page 3 and 4: 112 IMMIGRATION PRACTICE POINTERS,
Page 5 and 6: 114 IMMIGRATION PRACTICE POINTERS,
Page 7 and 8: U.S. Department of Homeland Securit
Page 9 and 10: SUBJECT: Additional Guidance Regard
Page 19: PM-602-0017: Subject New INA Sectio
Page 23 and 24: PM-602-0017: Subject New INA Sectio
Page 35 and 36: U.S. Citizenship and Immigration Se
Page 37 and 38: Why do some "Receipt Numbers" never
Page 39 and 40: Office of Policy & Strategy Questio
Page 41 and 42: c) Can a child over 21 (but under 2
Page 43 and 44: Field Operations Directorate Questi
Page 45 and 46: Dec. 791 (Comm. 1988), Matter of Se
Page 47 and 48: ulemaking, or even informal policy
Page 49 and 50: Response: The Vermont Service Cente
Page 51 and 52: Meeting Invitation Quarterl
Page 53 and 54: Overview • This presentation will
Page 55 and 56: Background of I-360 Conversion •
Page 57 and 58: Who Can Receive I-360 Conversion Be
Page 59 and 60: Who Can Receive I-360 Conversion Be
Page 61 and 62: Other Ways to Obtain Widow/Widower
Page 63 and 64: Service Centers’ Decision and Not
Page 65 and 66: Section 204(l) AILA InfoNet Doc. No
Page 67 and 68: Who Can Receive Benefits Under 204(
Page 69 and 70: Who Can Receive Benefits Under 204(
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Qualifying Relative - Spouse, - Par
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How is 204(l) Requested? • For pe
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How is 204(l) Requested? (Cont’d)
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Questions? AILA InfoNet Doc. No. 11
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Background • An approved petition
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How to Apply? • Principal benefic
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Substitute Sponsors (Cont’d) •
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Helpful Documentation • Evidence
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Processing Requests • No standard
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What are the Differences Between IN
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When are INA 204(l) and 8 CFR 205.1
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Only 8 CFR 205.1 is Available …
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USCIS Service Center Stakeholder Me
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• Answer: Example - LPR files I-1
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Meeting Invitation Service Cente
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enactment. This treatment comports
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cases, however, as in the case of a
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petitions is not contemplated by th
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of criteria for adjudicating petiti
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status application shall be adjudic
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Office of Public Engagement INA Sec
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DHS | Telecon Recap: Survivor Benef
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