Thursday, January 27, 2011

Approval of Petitions and Applications after the Death of the Qualifying Relative

U.S. Citizenship and Immigration Services Office of the Director

December 16, 2010 PM-602-0017 Policy Memorandum
Approval of Petitions and Applications after the Death of the Qualifying Relative

The DHS had determined that if the petitioner died before a case was complete the beneficiary was not permitted to receive the benefit of the petition. The immigration law was changed to allow the beneficiary in such circumstance to obtain the benefit through a 'qualifying relative' of the deceased petitioner.

The change in the law permits a visa petition or a refugee/asylee and adjustment to be approved if the beneficiary:
  • Resided in the United States when the qualifying relative died;
  • Continues to reside in the United States on the date of the decision on the pending petition or application; and
is the beneficiary of at least one of the following:
  • a pending or approved immediate relative visa petition;
  • a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries;
  • a pending or approved employment-based visa petition;
  • a pending or approved Refugee/Asylee Relative Petition; or
  • an alien admitted as a derivative "T" or "U" nonimmigrant; or
  • a derivative asylee .
It is not specified by the law as to who is the 'qualifying relative' but USCIS infers that is an individual who, immediately before death, was:
  • petitioner or principal beneficiary in a family-based immigrant visa petition or
  • principal beneficiary in an employment-based visa petition case; or
  • petitioner in a refugee/asylee relative petition;
  • principal alien admitted as a T or U nonimmigrant; or
  • principal asylee, who was granted asylum.
To avoid having a public charge inadmissibility ground, most immediate relatives and family-based immigrants, and some employment-based immigrants, must file an affidavit of support on their behalf that meets the requirements. If, after the death of a qualifying relative, a visa petition is approved or not revoked, then another individual who qualifies as a "substitute sponsor" must submit an, Affidavit of Support. If the alien is not required to have a legally binding affidavit of support, then there is no need for a substitute sponsor to submit an affidavit of support.

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