USCIS AND THE LACK OF PROCEDURES FOR SURVIVING RELATIVE PETITIONS UNDER INA § 204(l)

by

Myriam Jaidi










Congress
passed a noble law in 2009 to protect surviving family members who were the
derivatives of employment-based and other categories of petitions and
applications.  Specifically, the
law provides that certain categories of individuals could continue to have petitions,
adjustment applications and related applications adjudicated so long as they
were residing (not necessarily present, but residing) in the United States at
the time the qualifying relative died and continuing to reside in the United
States.  The statute specifically
states that the named categories of individuals “shall have” a “pending or
approved
” petition of the type listed in subsection 2 of the statute “and
any related applications adjudicated notwithstanding the death of the
qualifying relative . . . .”  INA
§ 204(l)(1)(emphasis
added).



This
blog will focus on the problems arising in the context of surviving relatives
of beneficiaries of employment-based petitions who have filed adjustment
applications.
  Given the backlogs
in the EB-3 category for India for example making people wait decades before
their priority dates become current, there may be more and more surviving
relatives to deal with.
  This blog
seeks to help shed some light on surviving relative cases and highlight some of
the overall problems with the lack of clear guidance from USCIS on what
surviving relatives should do and how their requests will be handled.

 


The
statute is worth reviewing in its entirety to demonstrate how odd it is that
USCIS treats surviving relatives differently based on whether an I-140 has been
approved or remains pending:


 


(l)  SURVIVING
RELATIVE CONSIDERATION FOR CERTAIN PETITIONS AND APPLICATIONS-



(1) IN GENERAL- An alien described in paragraph
(2) who resided in the United States at the time of the death of the qualifying
relative and who continues to reside in the United States shall have such
petition described in paragraph (2), or an application for adjustment of status
to that of a person admitted for lawful permanent residence based upon the
family relationship described in paragraph (2), and any related applications,
adjudicated notwithstanding the death of the qualifying relative, unless the
Secretary of Homeland Security determines, in the unreviewable discretion of
the Secretary, that approval would not be in the public interest.



(2) ALIEN DESCRIBED- An alien described in this
paragraph is an alien who, immediately prior to the death of his or her
qualifying relative, was--



(A) the beneficiary of a pending or
approved petition for classification as an immediate relative (as described in
section
 201(b)(2)(A)(i) );



(B) the beneficiary of a pending or
approved petition for classification under section
 203 (a) or (d) ;



(C) a derivative beneficiary of a pending
or approved petition for classification under section
 203(b) (as
described in section
 203(d) );



(D) the beneficiary of a pending or
approved refugee/asylee relative petition under section
 207 or 208 ;



(E) an alien admitted in `T' nonimmigrant
status as described in section
 101(a)(15)(T)(ii) or in `U' nonimmigrant status as described in section 101(a)(15)(U)(ii) ; or



(F) an asylee (as described in section 208(b)(3)).