INA 204(I)

Who is Covered by 204(I) ?

Unlike the widow(er) protections described in the previous section that are limited to U.S. citizen spouses, and unlike humanitarian reinstatement discussed in the next section that is limited to principal beneficiaries of approved I-130 petitions, INA § 204(l) covers several categories of pending or approved petitions. Section 204(l) provides that the persons listed below can seek relief if they can show residence in the United States at the time of the death, and they continue to reside in the United States. 

Note that 204(l) provides protections not only when the petitioner dies, but also, in some cases, when the principal beneficiary or other principal applicant dies. 204(l) covers: 

• Principal or derivative beneficiary of a pending or approved I-130 petition, when petitioner died; 

• Derivative beneficiary of a pending or approved I-130 petition, when the principal beneficiary died; 

• Derivative beneficiary of a pending or approved I-140 employment-based petition, when the principal beneficiary died; 

• Beneficiary of a pending or approved I-730 refugee/asylee relative petition, when the petitioner died; 

• Derivative of a T or U nonimmigrant visa holder, admitted as a derivative when the principal has died;

• Derivative asylee, where the principal asylee died.

Residence Requirement for 204(I) 

The statute requires that the applicant be residing in the United States at the time of the qualifying relative’s death and continue to reside in the United States. Residence is the applicant’s “principal, actual dwelling place in fact, without regard to intent.”21 Residence is not the equivalent of physical presence, and it is possible to qualify while briefly abroad if the applicant can show that they were actually residing in the United States. While many persons seeking 204(l) may be doing so through adjustment in the United States, it is possible to use 204(l) for a surviving relative who is consular processing if that individual maintains U.S. residence while making a temporary trip abroad. 

The residence requirement has been interpreted by USCIS to mean that at least one beneficiary, if there are several derivative beneficiaries, must meet the requirement of living in the United States at the time of the death, and be continuing to live in the United States when seeking relief. If one beneficiary meets the requirement, all beneficiaries may be found to meet the requirement.

Admissibility and 204(I)                            

204(l) applicants are subject to the grounds of inadmissibility at the time of adjustment or immigrant visa interview. If applicants are in a category that is required to submit an affidavit of support (either Form I-864 or I-864W), they will need to do so despite the death of the original petitioner. Substitute sponsors must be a U.S. citizen or lawful permanent resident, at least 18 years old, and the spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years old), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian of the applicant. For waivers of grounds of inadmissibility where the statute requires a showing of extreme hardship to a qualifying relative, USCIS will deem the death of a qualifying relative as the “functional equivalent” of a finding of extreme hardship. In other words, USCIS will assume that the death of the qualifying relative constitutes extreme hardship for purposes of the waiver, although the waiver applicants will still need to establish they warrant the favorable exercise of discretion. In addition, the waiver applicant must have a qualifying relative that was already a citizen or permanent resident at the time of the death to be eligible. Since derivatives can also qualify for 204(l), and the principal beneficiary can be the qualifying relative, when that principal beneficiary dies before immigrating the derivatives may lack the relative needed for a waiver or the consideration of “functional equivalent” hardship.

“Public Interest” Discretionary Standard

INA § 204(l) states that the Secretary of Homeland Security can deny a petition if the approval would not be in the “public interest.”  Given the mandatory language in the statute and this fairly generous standard, most cases should be approved. According to USCIS guidance, “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.” Adjustment is also a discretionary remedy and presentation of favorable factors are always helpful to support favorable discretion.

Retroactivity 

INA §204(l) became law on October 28, 2009. Grants of 204(l) relief are possible for cases that arose because the qualifying relative died prior to the date of enactment. 30 USCIS will allow untimely motions to reopen a petition, adjustment application, or waiver application that was denied prior to October 28, 2009 if 204(l) would now allow approval. The motion to reopen fee, or a fee waiver, must accompany such a motion, as well as supporting documentation for 204(l) eligibility.31 If USCIS denies a case on or after October 28, 2009 without considering the effect of 204(l) for an eligible applicant, the agency must reopen on its own motion.

How to Apply for 204(I) 

There is no specific application form to use to apply for 204(l) relief. Instead, to request 204(l) coverage, applicants should submit a cover letter explaining their eligibility and providing supporting documents. The applicant should clearly distinguish 204(l) applications from humanitarian reinstatement, as the former has statutory authority and mandatory language, while the latter is entirely a creature of USCIS regulation and is highly discretionary. Sometimes 204(l) applications are confused with humanitarian reinstatement requests, which have very different eligibility criteria.