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USCIS issues memo on Surviving Relatives’ Law

By Atty. Daniel Hanlon

On December 16, 2010, USCIS issued an official Memorandum to implement the provisions of INA §204(l), or the Surviving Relatives Law. The memo amends the USCIS’ Adjudicators’ Field Manual (AFM) to provide consistency in adjudications under the Surviving Relatives Law at USCIS offices throughout the Country. The memo should allow for immediate USCIS’ action on many cases that it has held under submission in the absence of regulatory guidance to implement Section 204(l).

Section 204(l) was signed into law by President Obama signed into law in October 2009. The new law amends the Immigration & Nationality Act (INA) reversing the longstanding rule that visa petitions filed for relatives are automatically revoked upon the death of the Petitioner. The law was designed to ameliorate the harsh, unfair consequences resulting to thousands of beneficiaries of family and employment-based visa petitions who have been waiting for years for their priority dates to become current, only to have their hopes dashed by the untimely death of the Petitioner before they could obtain their green cards.

For decades, the rule was simple: The Petition dies with the Petitioner. The only way to avoid application of that law was through approval of a Request for Humanitarian Reinstatement with the office of the USCIS that originally approved the petition. Since the decision to grant such a request was solely within the discretion of the USCIS, these applications were assigned a very low priority within the USCIS offices, causing bereft Beneficiaries of petitions filed by recently deceased US Citizens and Green card holders to suffer inordinate delays and additional anxiety while their fate lay in the hands of a USCIS officer.

According to the Surviving Relative Law, the rule is completely reversed: The Petition survives the death of the Petitioner. The only way this rule does not apply is if the USCIS, in its discretion, believes that the revalidation of such a petition would be “against the public interest.” In the vast majority of cases, the Beneficiaries of such petitions are merely innocent victims of long delays in visa availability and the tragic loss of their petitioning relative. The new law removes the additional penalty of losing any opportunity to obtain lawful permanent resident status to these already suffering victims.

The unfairness of the so-called “Widow Penalty” provided much of the impetus for this new legislation. Under prior law, the surviving spouse of a US Citizen who had petitioned her for a green card could, with limited exceptions, only obtain the green card if the marriage had lasted two years before the US Citizen Petitioner denied. This rule created anomalous and arbitrary results, giving rise to many law suits challenging the fairness of a law that would deny the green card to a widow (even the widow of a US Serviceman killed in Iraq in one famous case) solely because the marriage did not last two years before the Petitioner’s unfortunate death. Section 204(l) removed the requirement that the marriage must have lasted two years, allowing for the widowed beneficiary of a petition filed by a US citizen to obtain a green card as long as the widow did not subsequently remarry.

In addition to removing the “Widow Penalty,” Section 204(l) expands its protections to additional categories of beneficiaries, as long as they were residing in the US on the date the Petitioner passed away and continue to reside in the US, including: Unmarried sons and daughters of Citizens, Spouses and unmarried sons and daughter of green card holders, married sons and daughters of citizens, and brothers and sisters of citizens.

Children of such beneficiaries may also be included derivatively if they continue to meet the definition of “child” under the law at the time the priority date becomes current.
Beyond the regular family categories, Section 204(l) also preserves eligibility for derivative beneficiaries of employment-based categories, where the principal Beneficiary has passed away during the process. This rule would allow for the spouse and children of a worker whose I-140 is pending or has been approved to continue to seek adjustment of status to permanent resident even though the worker under petition passes away. This provision will help avoid the extremely unfortunate situation where a family has been residing in the US for many years while awaiting their green cards through the “labor certification” and I-140 process, only to have their children uprooted from school and forced to depart the US following the tragic loss of their parent.

Additionally, the new law will provide ongoing availability of benefits to the surviving direct and derivative beneficiaries of refugee and asylee petitions, as well as the dependent beneficiaries of deceased “U” and “T” visa holders. The new law also makes clear that in any case where the petition is found to survive the death of the petitioner or “qualifying relative,” the regular affidavit of support requirements do not apply, allowing for substitute sponsors on the affidavit of support in such cases.

The December 16, 2010 memorandum is the first piece of administrative guidance as to how the USCIS will interpret Section 204(l). For example, the regulation makes clear that a person need not have been physically present in the US on the date the “qualifying relative” passed away to benefit from its provisions; only that the US was the person’s “principal or actual place of residence,” even if they were physically outside the US at the time of death. Also, the memo infers that petitions can be reinstated in cases where the Petitioner died before the law was passed and that substitute sponsors can be used for the purposes of the affidavit of support.

In issuing the memo, the USCIS has taken a fairly broad view of the law’s applicability, which is keeping with its “plain language” and clear ameliorative purpose, which could benefit thousands of bereft beneficiaries and applicants for immigration benefits in the US.

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Daniel P. Hanlon has been practicing Immigration and Nationality Law exclusively since his admission to the California State Bar in 1993. Mr. Hanlon is the founder of Hanlon Law Group, a P.C. He has argued many important immigration appeals before the United States Court of Appeals for the Ninth Circuit, and successfully challenged INS rulings in the United States District Court for the Central District of California.

Mr. Hanlon’s experience spans several years, and covers a broad range of immigrant and nonimmigrant visa petitions, including those for working professionals, multi-national managers, treaty-traders, investors, athletes and entertainers. Mr. Hanlon also has vast experience in all family-based Petitions and in labor certification applications under both Department of Labor-supervised recruitment and Reduction in Recruitment methods.

Over the past several years, Mr. Hanlon has tried thousands of cases in Immigration Court involving Requests for Asylum in the United States, Cancellation of Removal, and Waivers of Grounds of Removability.

Mr. Hanlon graduated “With Distinction” from the University of Michigan at Ann Arbor in April 1988, with a Bachelor of Arts degree in English. In May 1993, Mr. Hanlon graduated from Loyola Law School in Los Angeles. He is a member of the American Immigration Lawyers Association, of which he sits on the Investors Committee. Mr. Hanlon has also appeared as a speaker before the Los Angeles County Bar Association, Immigration Section, on the 1996 immigration law amendments. Hanlon Law Group, P.C. is headquartered at 225 S. Lake Avenue, Suite 1100, Pasadena, CA 91101, tel: (626) 585-8005, fax: (626) 585-8595, website:  www.hanlonlawgroup.com, email: visas@hanlonlawgroup.com.

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