WIDOWS AND OTHER

SURVIVING

RELATIVES

Name

Title

Section

REMEDIES FOR SURVIVING

RELATIVES

• Widow(er) petitions

• 204(l) relief for other surviving family

members

• Humanitarian reinstatement

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SELF-PETITIONS FOR WIDOW(ER)S

OF U.S. CITIZENS: WHO QUALIFIES?

• Married to a U.S. citizen (citizen at time

of death)

• Married at time of citizen’s death, no

legal separation

• File I-360 within two years of the death

• Not remarried

• Admissible

WIDOW(ER)s OF U.S. CITIZENS

• No U.S. residence requirement

• Bona fide marriage still required

• Although immediate relatives, can qualify

children as derivatives

FILING PROCEDURE

• Determine if eligible for adjustment of status

or must consular process

• If eligible for adjustment, file I-360 with I-485

• If must consular process, consider whether

will trigger ground of inadmissibility (unlawful

presence) by leaving

• Special waiver policy

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FILING PROCEDURE

• Submit copy of the following:

– Marriage certificate

– Proof of good faith marriage

– Proof of citizenship of deceased

– Death certificate

– Termination of prior marriages

– Birth certificate of minor children

• Pending or approved I-130 converts to I-360

• No affidavit of support (Form I-864W)

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INADMISSIBILITY AND WAIVERS

If following conditions met, widow can file

waiver and CIS will presume extreme

hardship:

• If widow residing in U.S. on date spouse died

• If widow continues to reside in U.S. through

adjudication of petition, application

• Citizen spouse died while petition/application

pending or after petition approved

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INA § 204(l)

• Law helps principal and derivative

beneficiaries when the petitioner dies

• Law helps derivative beneficiaries when

principal beneficiary dies

• Law helps beneficiaries in both the family

and employment-based categories

• USCIS memo dated 12/16/10 implemented

this section of the law

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SURVIVING RELATIVES

COVERED BY 204(l)

• Widows of LPRs

• Children of LPRs

• Children of citizens

• Adult unmarried sons,

daughters of citizens

and derivatives

• Married children of

citizens and their

derivatives

• Parents of citizens

• Siblings of citizens

and derivatives

• Spouses and children

of asylees, refugees

• Derivative of principal

T and U visa holders

• Derivatives when

principal beneficiary

dies in family and

employment-based

cases 9

BENEFITS OF 204(l)

• Beneficiaries may continue with the case as

if the petitioner or principal beneficiary had

not died

• They can continue with adjustment of

status or consular processing

• Does not allow for adjustment if not

otherwise eligible

• Must still satisfy petition requirements

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0

NO 204(l) RELIEF WITHOUT:

• Residence in U.S. by beneficiary or

derivative at time of petitioner or

principal beneficiary’s death

• Qualifying substitute sponsor (where

applicable)

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• Remedy #1: Death

when petition or

application pending

• Pending petition or

application will be

approved where at

least one beneficiary

meets residence

requirements AND

• Qualifying substitute

sponsor is available

• Remedy #2: Death

after petition approved,

nothing pending

• Approved petition will

be reinstated where at

least one beneficiary

meets residence

requirements AND

• Qualifying substitute

sponsor is available

TWO 204(l) REMEDIES

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Substitute I-864

• Submit substitute affidavit from the

beneficiary’s spouse, parent, mother-in-

law, father-in-law, sibling, child (at least 18

years), son, daughter, son-in-law,

daughter-in-law, sister-in-law, brother-in-

law, grandparent, grandchild, or guardian

• Must be US citizen or LPR and domiciled

in U.S.

• Can also secure joint sponsor who meets

income requirements

EFFECTIVE DATE

• Remedy #1 applies to petitions/applications

pending on or filed on or after Oct. 28, 2009,

so not retroactive

• Petitioner could have died before that date

• If petition/application adjudicated or revoked

prior to October 28, 2009 and beneficiary

satisfies residency and other requirement,

can file motion to reopen

• USCIS will reopen petition/application

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INADMISSIBILITY AND WAIVERS

• Similar rule as for widows

• If adjustment or immigrant visa applicant

satisfies residency requirement, can apply

for a waiver, even though qualifying relative

has died

• Death of petitioner will be deemed to

satisfy extreme hardship requirement

• USCIS can still deny in its discretion

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INADMISSIBILITY AND WAIVERS

• Special waiver rule applies for Remedy #1

and #2

• May not apply if petitioner dies and

derivative beneficiaries still need

qualifying relative

• May not apply if principal beneficiary dies

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APPLYING FOR

204(l) RELIEF

• Remedy #1: Request that pending petition

be approved. Request that pending

adjustment of status be approved. Request

that pending immigrant visa processing

continue.

• Remedy #2: Request 204(l) reinstatement

of petition from CIS Service Center that

adjudicated petition. Or request 204(l)

reinstatement when file for adjustment.

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HUMANITARIAN

REINSTATEMENT of I-130

• Remedy to pursue where 204(l) doesn’t

apply and petition already approved

• Under 8 CFR § 205.1(a)(3)(i)(C), focus is

on humanitarian basis for reinstatement of

revoked petition

• Written request, supporting documentation

including substitute I-864

• Not available where principal beneficiary

died

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HUMANITARIAN FACTORS

• Long residence in the United States

• Impact on other family members and their

immigration/citizenship status

• Advanced age or health-related problems

• Current economic or political conditions in

home country and lack of contact or family

• Attachment to local community

• Declarations from friends, religious leaders

• Agency delay in adjudicating petition

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APPLYING FOR HUMANITARIAN

REINSTATEMENT • To the USCIS service center that

adjudicated the I-130 petition

• File with district office if pending

application for adjustment of status

• File with Chicago Lockbox if filing together

with adjustment application

• No filing fee for motion/request

• Was taking long time to adjudicate, but

now faster

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