USCIS Clarifies Rules for Immigrants Facing Petition Denial Because of a Death

As readers of Nolo's immigration books may already know, legislation in 2010 made it possible for certain immigrants to continue with an immigration petition that's been submitted to U.S. Citizenship and Immigration Services (USCIS), even if the petitioner or the principal immigrant (upon whom their own application was dependent, as a "derivative") died during the application process (before USCIS got around to approving the petition).

The immigrant must have been living in the United States at the time the petitioner or principal immigrant died, and continue to reside in the United States on the date USCIS makes a decision on the application. The immigrant must also be 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
  • a 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
  • a "T" or "U" nonimmigrant, or
  • a derivative asylee.

Now we have some clarification and interpretation of this law from USCIS, who in December of 2010 published a relevant Policy Memorandum. Some highlights of this memo include:

  • Clarification of the requirement that the immigrant reside in the United States. The memo explains that "A person's 'residence' is his or her principal, actual, dwelling place in fact, without regard to intent." In fact, as long as the immigrant was actually living in the United States, it doesn't matter if he or she happened to be abroad on the day the petitioner or qualifying relative died.
  • Statement that being eligible under this new law doesn't help immigrants who are inadmissible to the United States for other reasons. The memo elaborates that the new law "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."
  • Reminder that the immigrant must now find another person to file a Form I-864 Affidavit of Support on his or her behalf (if an I-864 was required in the first place).
  • Specification that, if the immigrant needs to apply for a waiver or other form of relief from admissibility, USCIS may consider it based on the relationship to the person who died, despite the death.
  • An opportunity for immigrants who were denied approval of their petition in past years because of the death of the petitioner or principal immigrant to have their cases reopened. The immigrant will need to file a motion to reopen and pay a fee. (We recommend getting an attorney's help with this.) Reopening an adjustment of status case for a new decision will help with inadmissibility issues as well, because it "will cure any unlawful presence that may have accrued between the original denial and the new decision."

For an individual analysis of whether this new law applies to your situation, you may want to look for a local immigration attorney in Nolo's Lawyer Directory.