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USCIS Urged to Facilitate Grant of Benefits to Surviving Relatives

In October 2009, a law known as Section 204(l) was enacted to allow surviving relatives of a petitioner to continue their application for a green card provided they resided in the United States when the qualifying relative died and they continue to reside in the U.S.

The qualifying relative could be the petitioner in a family-based immigrant visa petition; the principal beneficiary in a family-based visa petition; the principal beneficiary in an employment-based visa petition; the petitioner in a refugee/asylee relative petition; the principal alien admitted as a T or U nonimmigrant; or the principal asylee granted asylum.

The surviving relatives that benefit from the law are the beneficiary of a pending or approved immediate relative petition; 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 or Refugee/Asylee Relative Petition; an alien admitted as a derivative “T” or “U” nonimmigrant; or a derivative asylee.

Previously, when the qualifying relative died, the petition was automatically revoked. The surviving relatives could only seek the humanitarian reinstatement of the revoked petition which was a quite difficult relief to obtain.

A recent review by the USCIS Ombudsman revealed that after three years the surviving beneficiaries have not been fully experiencing the protections of Section 204(l).

The Ombudsman found that the USCIS has implemented the law in a way that was inconsistent with the letter and the spirit of the law. It was referring in particular to the Policy Memorandum released by the agency in January 2011 which deemed previously approved petitions automatically revoked and subject to discretionary reinstatement. This implied, according to the Ombudsman, that all action on the case is terminated and the beneficiary must request the reinstatement of the petition.

This discretionary reinstatement claimed by the USCIS deviates from what is clearly stated in the law.

The USCIS maintains that Section 204(l) did not give rise to any “right” or “guarantee” for a survivor to immigrate. The Ombudsman disagreed, saying that while the law correctly does not guarantee approval of a survivor’s case, the discretion of USCIS in the context of Section 204(l) was limited to cases the approval of which “would not be in the public interest.”

The Ombudsman added that processing by the USCIS should not depend on how or when it discovers the petitioning family member’s death and that it has no authority to automatically revoke petitions that Section 204(l) preserved. It reminded the agency of the law’s purpose which was “to keep survivors in the same place they would have been but for the qualifying relative’s death.”

The Ombudsman also found that USCIS had no clear process for survivors to request benefits under Section 204(l). Requests were made in various ways and the surviving beneficiaries did not know what would happen to their requests or how long processing would take.

Among the recommendations made by the Ombudsman was for USCIS to conduct rulemaking in a manner that gives the public an opportunity to comment on a proposed rule or procedure. It also recommended that the agency create a standard form to facilitate the processing which includes acknowledgement of receipt of the request and assignment of a number that can be used to track the case.

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