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) ).
As you can see, the law helps a host of categories of individuals, but here we will use the example of families who suffered the loss of a member who had been sponsored by an employer, with the sole difference being that in one case the I-140 had been approved and in the other the I-140 remains pending. In both cases, the families have been able to file their green card applications.
It is unclear what guidance, given the lack of “other rules and precedents”, terms like “may be appropriate” or “generally appropriate” provide to the adjudicating officer, but one would hope that given Congress’s intent to protect individuals in Karim’s position, and the fact that the statute clearly states it covers those with “pending or approved” petitions, that, barring other grounds of ineligibility, the I-140 should be reinstated and the adjustment applications and related applications should continue, as if his wife had not died.
Presumably, Helene could submit a similar packet to ensure the protections of §204(l) are applied to her and her family. In her case, she need not request reinstatement, but presumably she too would need to provide proof of her spouse’s death, and demonstrate residence in the United States at the time of his death and her intent to continue to reside in the United States. Because her husband’s I-140 is still pending, the best guess is that she needs to send the information to the Service Center processing his I-140.