Section 204(L): The Surviving Relatives’ Law

 Posted on February 10,2015 in Immigration

Before 2009, it had been the stated policy of the United States Citizenship & Immigration Services (USCIS, formerly INS) that if a petitioner died while his or her family member’s petition was still in process, that family member had to begin the process again, going back to their country and waiting even longer than he or she already had to immigrate. A change to the Immigration & Nationality Act (INA) made that no longer the case, and yet so many people still misinterpret and wrongly state the law.

Section 204(l)

Section 204(l) was added to the INA officially in 2010, with the express purpose of making it easier for those already in the process to continue. Previous controlling immigration decisions had simply chalked up anyone who had to start over as a casualty of time. Section L states that certain immigrants with a “qualifying relative” who passed away before the alien’s priority date may have their petition approved, providing they meet certain criteria. The criteria are:

• Resided in the U.S. when the qualifying relative died;

• Still resides in the U.S. as of the date of the pending application;

• Must be at least one of the following:
  
  
  • The beneficiary of a pending or approved visa petition for immediate relatives (“beneficiary” simply means “the person the visa will be granted to”);
  
  
  • The beneficiary of a pending or approved visa petition based on family connection (permits less close relatives to apply);
  
  
  • A derivative beneficiary of an employment-based visa petition (that is, your parent or spouse was receiving an employment-based visa, and you were permitted to accompany them);
  
  
  • The beneficiary of an I-730, Refugee or Asylee Relative petition; or
  
  
  • An immigrant admitted as a derivative of a T or U immigrant. (T and U immigrants are special types of visas, granted rarely.)
  
  
  

What is a “Qualifying Relative”?

One aspect of Section 204(l) that can prove confusing is that “qualifying relative” is not properly defined in the text of the law itself. USCIS issued a memorandum that sought to help clarify who fit that definition, and it does shed some light on this topic.

Generally, the qualifying relative designation is held to apply to the primary petitioners of the categories listed above. In other words, since the beneficiary of a pending/approved visa petition for immediate relative qualifies for approval under 204(l), the petitioner would be the qualifying relative. Since a relative of a refugee or asylee qualifies for approval, the qualifying relative there would be the primary refugee or asylee.

It is important to keep in mind that if your qualifying relative passes away, that does not change the initial requirements for the petition he or she filed. For example, if your family member passes away before your petition is approved, you still must provide an Affidavit of Support from someone who will ensure you do not become a public charge. You must also still prove your admissibility—and if there is a ground which bars you, you must either apply for a waiver or reapply at a later date.

Get a Professional on Your Side

If you have been waiting your turn and have experienced the death of your sponsor, there may still be a way to get your visa. The immigration attorneys in Chicago at Mevorah & Giglio Law Offices know the ins and outs of the visa system, and will work with you every step of the way to try and get you the result you desire. Contact our offices today for a free initial consultation.