Utilizing Petitions Filed Previously By Deceased Relative

Thousands of people immigrate to the U.S. every year, and many of those people have waited years to do so. Some of them even wait over 20 years to be able to legally come to the U.S. For example, currently, brothers and sisters of U.S. citizens that are from the Philippines have to wait over 23 years to immigrate to the U.S.! Even sons and daughters of U.S. citizens must wait at least 10 years before immigrating. During that time, a lot can happen – a child may turn 21, or get married, or in certain cases, the petitioner will pass away before the visa becomes available for their family member. Generally, in such a case, the petition “dies with the petitioner,” or, it is automatically revoked by operation of the law if it was previously approved. After waiting decades in anticipation of immigrating, the death of the petitioner is not just a tragedy for the family, but it can also come with the added disappointment of negative immigration consequences.

However, the law does allow for some ways around the death of a petitioner. INA 204(l) is a discretionary relief that is utilized to allow eligible applicants to adjust their status in the U.S. To be eligible, the beneficiary, or any of their derivatives, must have been residing in the U.S. at the time of the petitioner’s death. The crucial point of that requirement is that it does not require the principal beneficiary to have resided in the U.S., but the principal or any of their derivative beneficiaries, such as children or spouse. If any one of those beneficiaries were residing in the U.S. all of the beneficiaries can benefit from this provision. Furthermore, derivative beneficiaries can still utilize this provision of the law in the event that the principal beneficiary of an employment or family-based petition passes away.

INA 204(l) can help many families who suffered losses of their U.S. citizen or Permanent Resident family members. However, there is no guarantee that the case will be granted. The applicants must still show that they warrant USCIS discretion in granting their case. USCIS will look at all the negative and positive factors in their case. The law however, is in favor of exercising discretion, more than not. Speak to an attorney if you feel you can benefit from this law.

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