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.

Humanitarian Reinstatement: Petitioner Dies, Beneficiary Has an Approved Petition A. The Limitations of Humanitarian Reinstatement  For many years, the only relief available for petitioners in cases where the petitioner died was a discretionary mechanism under a USCIS regulation which gives the agency discretion to decide not to revoke an approved petition upon death for “humanitarian reasons.” This limited relief can only be requested by the principal beneficiary of an approved petition, thus it is not a possible remedy for someone whose long pending petition had not yet been approved, nor can it provide a remedy for derivatives of a principal beneficiary. USCIS treats this as an entirely discretionary request, and denials cannot be challenged by appeal. B. How to Request Humanitarian Reinstatement  USCIS directs applicants to request humanitarian reinstatement by letter to the office that approved the petition, as no USCIS form exists for this purpose. Because some USCIS offices will not entertain repeated requests for humanitarian reinstatement, it is particularly important to file the initial request with all the supporting evidence that USCIS requests. After the death of petitioner, wait to file the request until the substitute sponsor’s affidavit of support and the humanitarian documentation can be gathered, as well as the identifying information about the underlying petition and the petitioner’s death certificate. The specific documents to include are described below. Persons requesting humanitarian reinstatement are subject to the affidavit of support requirement and should include a Form I-864, Affidavit of Support from a substitute sponsor, (or an I-864W, Affidavit of Support Exemption), since the petitioning relative has died and can no longer provide an affidavit of support. In addition, applicants should include documentation showing that they warrant a favorable exercise of discretion.  Humanitarian reinstatement requests should also include a copy of or identifying information about the underlying petition, the receipt and approval notice, the name of applicant and the deceased petitioner, any A-numbers for applicant or decedent, and the petitioner’s death certificate. In addition, an individual requesting humanitarian reinstatement should provide evidence of the following to support favorable discretion:  • Impact on family living in the United States, especially U.S. citizens, lawful permanent residents, and others lawfully present; • Advanced age or health concerns;  • Ties or lack thereof to the home country; • Other factors such as unusually lengthy government processing delays; and  • Any other factors that weigh in favor of reinstatement. In practice, the factors different USCIS offices weigh in adjudicating reinstatement can vary because the requests are solely within USCIS’s discretion. Humanitarian reinstatement processing can be unpredictable and take a long time, due to problems arising from the lack of a standardized form and confusion on the part of both USCIS and applicants over which USCIS office has jurisdiction over a particular humanitarian request. Unrepresented applicants sometimes have difficulty submitting requests that USCIS deems complete and approvable, and a partially documented request may be denied, rather than receive a request for further evidence. After a denial, some USCIS offices will not permit subsequent requests for reinstatement without the filing of a motion to reopen, I-290B, with the required fee, submitted within 30 days of the USCIS decision.47 Since it may take months for an applicant to gather necessary documentation of humanitarian grounds and the I-864 Affidavit of Support, and there is no appeal from denial of humanitarian reinstatement, this means some potential applicants lose the opportunity to request reinstatement. MORE INFO: USCIS Web Page, “Humanitarian Reinstatement,” https://www.uscis.gov/greencard/humanitarian-reinstatement USCIS, AFM, Chapter 21.2(h)(2)(C)

THE THREE OPTIONS 1. Widow(er) Petition under INA 201(b)(2)(A)(i) Widow(er)s of U.S. citizens have the broadest avenue of relief should their U.S. citizen spouse die. The statute allows them to remain classified as immediate relatives and to continue to be eligible to immigrate if they file an I-360 self-petition within two years of the death of the U.S. citizen or to automatically convert an already-filed I-130 to an I-360. See Widow Petition Page for more info. 2. INA § 204(I) 204(l) Covers: In 2009, Congress created a broad protection for survivors with the enactment of INA § 204(l). There are no regulations on this provision, but there is a USCIS Policy Memo. USCIS, 204(l) Memo and USCIS Webpage, “Basic Eligibility for Section 204(l) Relief for Surviving Relatives,” https://www.uscis.gov/greencard/section-204l-relief-surviving-relatives, The USCIS Webpage also has an overview of the three types of survivor relief discussed here: 204(l), widow/widowers of U.S. citizens, and humanitarian reinstatement, https://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20National%20Engagements/National%20Engagement%20Pages/2011%20Events/Sept.%202011/I-130_Humanitarian_Relief_Presentation_09_27_2011.pdf. See INA 204(I) Page for more info. 3. Humanitarian Reinstatement: Petitioner Dies, Beneficiary Has an Approved Petition This limited relief can only be requested by the principal beneficiary of an approved petition, thus it is not a possible remedy for someone whose long pending petition had not yet been approved, nor can it provide a remedy for derivatives of a principal beneficiary. USCIS treats this as an entirely discretionary request, and denials cannot be challenged by appeal. See Humanitarian Reinstatement Page for more info.