We recently received an approval of a 204l request on behalf of a widow whose husband was the primary beneficiary of an employment-based petition. Now that the petition has been formally reinstated by USCIS, our client will now be potentially eligible to file for adjustment of status as a derivative notwithstanding the fact that her deceased husband was the primary beneficiary of the employment-based petition. Under ordinary circumstances, this would not be possible since dependents cannot immigrate without the primary beneficiary, and petitions are automatically canceled/revoked if the primary beneficiary passes away. However, tucked away within the Immigration and Nationality Act is a special humanitarian provision, 204l, which addresses situations such as these and provides for restoration of what would normally be canceled files.
204l of the INA provides potential relief to the following classes of people:
· Principal or derivative beneficiary Form I-130 and the principal beneficiary died;
· Derivative beneficiary of Form I-130, and the principal beneficiary died;
· Derivative beneficiary of Form I-140, and the principal beneficiary died;
· Beneficiary of a pending Form I-730, and the petitioner died;
· T or U nonimmigrant visa holder in a derivative classification, and the principal visa holder died; or
· Derivative asylee and the principal asylee died.
One very important requirement, however, is that at least one beneficiary, or derivative beneficiary, resided in the United States when the relative died and continues to reside in the United States when seeking relief. Provided the applicant can prove residence in the US at the time of the relative’s death and demonstrate that a favorable exercise of discretion is warranted, USCIS may allow the surviving beneficiary to continue the case.
204l relief is requested through USCIS. Depending on the status of the underlying petition, a request may be made to approve the petition despite the relative’s death or reinstate the petition (if the relative died after approval). According the USCIS guidelines, any request must include the following:
· Your name, your deceased relative’s name, and the name of any other beneficiaries on the same petition;
· Your alien registration number;
· Your deceased relative’s alien registration number;
· Receipt number on your petition or application;
· Your relative’s death certificate;
· Proof of residence at the time of your relative’s death up until the present time; and
· Form I-864 from a substitute sponsor or Form I-864W, if applicable.
If you think 204l applies to your situation and you need help, please contact our office. The law is extremely complicated and there are nuances and specifics that are beyond the scope of this article that may affect eligibility.
The above is general information only. It is not specific legal advice nor intended to create an attorney client relationship. If you need advice, please consult with an attorney.