SURVIVING RELATIVES: NEW WAYS TO RESUSCITATE A DEAD PETITION OR APPLICATION

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1 Copyright 2011, American Immigration Lawyers Association. All rights reserved. Reprinted, with permission, from AILA s Immigration Practice Pointers, ( Edition), available from AILA Publications, , SURVIVING RELATIVES: NEW WAYS TO RESUSCITATE A DEAD PETITION OR APPLICATION by Barbara L. Bower, Christie Popp, and Brent Renison * This article concerns new solutions, under recently enacted legislation and pursuant to a class-action settlement, to some of the problems encountered by surviving relatives following the death of the person who had provided the basis for immigration benefits. On October 28, 2009, President Obama signed into law two provisions directed toward surviving relatives: (1) elimination of the two-year marriage requirement for selfpetitioning widows and widowers [widow(er)s] of U.S. citizens; and (2) an entirely new INA section, Section 204(l), which allows many petitions and other immigration benefits to remain viable after the death of the qualifying relative. 1 U.S. Citizenship and Immigration Services issued a Memorandum dated December 2, 2009, by Donald Neufeld, Associate Director, Service Center Operations Directorate (Neufeld Memo), that provided guidance on the change to widow(er)s of U.S. citizens, and issued a policy memorandum dated December 16, 2010, that provided guidance on implementation of the new INA 204(l) provisions (Policy Memo). 2 A few key concepts may assist practitioners in sorting through the provisions that are relevant to an individual client s case: Widow(er)s of U.S. citizens are treated differently than other surviving relatives, primarily because there is a right to self-petition in addition to having a previously filed petition remain valid. Congress eliminated the provision requiring a marriage of two years for widow(er)s of U.S. citizens to self petition, and litigation and a class action settlement established other rights for this class of immigrants; Humanitarian Reinstatement, which has for many years served as the only immigration tool for most surviving relatives, has been partially replaced by the more liberal provisions of 204(l) and the removal of the two-year marriage requirement for widow(er)s of U.S. citizens. Nevertheless, it remains an option available under the regulations for cases not covered by the widow(er) or 204(l) provisions; * Barbara L. Bower practices immigration law with Sherrard, German & Kelly, P.C. in Pittsburgh. Her clients range from large publicly traded multinational corporations to small start-up companies and private individuals. She is a past chair for the AILA Pittsburgh Chapter and has served on numerous national AILA committees. She chaired the 2000 AILA Annual Conference Committee. She has been selected for inclusion in The Best Lawyers in America for immigration. Christie Popp is the director of the Immigrants and Language Rights Center of Indiana Legal Services. Prior to becoming the director, she worked as a staff attorney for the organization. She handles a variety of cases for low-income immigrants and their families, including cases related to family-based immigration, deportation defense, U visas, VAWA-related immigration benefits, and naturalization. She received a J.D. from Vermont Law School in 2005 and earned a B.A. in Latin American Studies from Indiana University in Brent Renison is top listed in Best Lawyers in America, is ranked as a leading individual by London-based Chambers and Partners, and is named by Law & Politics as a Super Lawyer. He received the Ninth Annual Daniel Levy Memorial Award for Outstanding Achievement in Immigration Law in Washington, DC in In 2007, he was presented with an AILA Presidential Award for Outstanding Achievement in Mentoring and Litigation on behalf of immigrant rights and with the Gerald H. Robinson Excellence in Advocacy Award by the AILA Oregon Chapter. He worked for over five years to end the widow penalty through litigation and legislative advocacy. 1 INA 201(b)(2)(A)(i) (8 U.S.C. 1151(b)(2)(A)(i)); INA 204(l) (8 U.S.C. 1154(l)), as amended by 568(c) and 568(d) of the DHS Appropriations Act, 2010, Pub. L. No , 123 Stat. 2142, (2009). Note that new INA 204(l) follows 204(k) alphabetically, and the subsection is ordered by the letter l as in letter as opposed to a numeral 1 or I. 2 Memorandum, Neufeld, Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (Revised), Dec. 2, 2009, published on AILA InfoNet Doc. No (posted Dec. 14, 2009); Policy Memorandum, Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act, PM , Dec. 16, 2010, published on AILA InfoNet Doc. No (posted Jan. 10, 2011). 110 Copyright 2011 American Immigration Lawyers Association

2 SURVIVING RELATIVES: NEW WAYS TO RESUSCITATE A DEAD PETITION OR APPLICATION 111 Surviving Relative Consideration Under 204(l) represents a new form of relief for surviving relatives, some of whom could previously only rely upon humanitarian reinstatement, and many of whom simply had no relief at all. The requirements of 204(l) relief center around two main elements: Residence in the United States at the time of the death, and continuing residence in the United States; and A Previously Filed Petition such that at the time of the death the surviving relative was the beneficiary or derivative beneficiary of a petition. This is in contrast to the self-petition rights unique to widow(er)s of U.S. citizens. Figure 1. As shown above in Figure 1, widow(er)s are subject to special rules, including the statutory right of selfpetitioning. Widow(er)s married more than two years are subject to different rules than those married less than two years, but only for pre-october 28, 2009 deaths. Additionally, because of the Hootkins v. Napolitano class action, 3 cases involving petitions filed in the Ninth Circuit, or where the beneficiary or petitioner resided in the Ninth Circuit at the time of the death, are subject to special rules in accordance with the settlement of that lawsuit. If the case does not involve a widow(er) of a U.S. citizen, it may be covered by new INA 204(l), as shown below in Figure 2. 3 Hootkins v. Napolitano, 645 F. Supp. 2d 856 (C.D. Cal. 2009) (court filings and rulings, including the settlement agreement reached Apr. 5, 2010, are available at Copyright 2011 American Immigration Lawyers Association

3 112 IMMIGRATION PRACTICE POINTERS, ED. Figure 2. Figure 2 incorporates the statutory language of new INA 204(l) and the interpretation given to it by U.S. Citizenship and Immigration Services (USCIS) through the Policy Memo. As with any simplified construct, it is provided only as an aid to a more thorough analysis of an individual case. One should not rely on Figure 2 alone to analyze eligibility. Additionally, there are a number of areas that are either not clear as of this writing or are the subject of disagreement between the USCIS interpretation and AILA s membership. USCIS issued a Draft Policy Memorandum on May 17, , and AILA responded with comments. 5 4 Draft Policy Memorandum, May 17, 2010, published on AILA InfoNet Doc. No (posted May 17, 2010). 5 AILA Comment on USCIS Draft Policy Memorandum Regarding 204(l), published on AILA InfoNet Doc. No (posted June 3, 2010). Copyright 2011 American Immigration Lawyers Association

4 SURVIVING RELATIVES: NEW WAYS TO RESUSCITATE A DEAD PETITION OR APPLICATION 113 Remarriage The clear statutory language of 201(b)(2)(A)(i) covering self-petitioning widow(er)s of U.S. citizens bars self-petitioning eligibility for widow(er)s who remarry. In response to the Draft Policy Memo, however, AILA responded that 204(l) nevertheless provides relief to those who remarry: A widow(er) whose U.S. citizen spouse filed an I-130 petition before dying, and who remarries prior to being admitted to lawful permanent resident status, still qualifies as an alien described in INA 204(l)(2)(A) because the alien, 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)). INA 204(l)(2)(A). By fixing the point of eligibility before the death, the statute clearly contemplates eligibility for those who were spouses of U.S. citizens immediately prior to the death of the qualifying relative. The statute does not require the widow(er) to continue to be the spouse of a U.S. citizen; only that he or she was an immediate relative at the time of death, and was the beneficiary of a petition. 6 This argument is further strengthened by the language of 204(l)(1), which requires that the petition be adjudicated based upon the family relationship described in paragraph (2), because that family relationship is described in terms fixing the relationship immediately prior to the death. USCIS bases its contrary position only upon the remarriage bar contained in 201(b)(2)(A)(i). 7 This statute, however, does not pertain to widow(er)s of lawful permanent residents (LPRs) in the 2A category, and it cannot be reconciled with the clear language of 204(l). This is an area, therefore, where an appeal to the BIA or litigation may find fertile ground. Affidavit of Support Another area of concern is in the area of the I-864 Affidavit of Support. USCIS takes the position that the petitioner s I-864 is no longer valid. 8 In order to be admissible, therefore, a survivor must either show exemption from the I-864 requirement or obtain an I-864 from a substitute sponsor who must be related to the applicant in one of the ways described in 213A(f)(5). 9 This may be impossible in cases where the survivor does not have one of the relatives listed. The substitute sponsor requirement is absolute, according to USCIS, and neither the alien s own funds nor joint sponsors can cure the absence of a substitute sponsor. AILA previously commented that in cases where the petitioner (now deceased) executed an I-864 prior to the death, the affidavit of support requirement should be deemed to have been met because it was a related application. 10 USCIS disagreed, stating that the I-864 is neither a petition, nor an application, nor a related application. 11 Because there will undoubtedly be survivors who qualify for 204(l), save for lack of a qualifying substitute sponsor, it appears that litigation may be necessary to advance survivors rights in this area. Discretion The Policy Memo lacks the necessary clarity on the issue of discretion, which could lead to erroneous denials. Specifically, 204(l) does authorize the agency to withhold approval where the secretary of the Department of Homeland Security determines that approval would not be in the public interest. 12 Such discretion is unreviewable. 13 According to the Policy Memo, however, discretionary public interest denials 6 Id., p Policy Memo, p Policy Memo, p Relatives include, spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, sonin-law, daughter-in-law, sister-in-law, brother-in-law, grandparent or grandchild of a sponsored alien or a legal guardian of a sponsored alien INA 213A(f)(5) 10 AILA Comment, p Policy Memo, p INA 204(l)(1). 13 Id. Copyright 2011 American Immigration Lawyers Association

5 114 IMMIGRATION PRACTICE POINTERS, ED. should not be routinely used, and a consultation with headquarters is required prior to denying a visa petition on that basis. 14 The Policy Memo notes that traditional discretionary factors may still be used to deny a case, without specifying under which situations those may be appropriate. Nevertheless, because visa petition proceedings are nondiscretionary by nature, one can make the argument that only a public interest denial subject to the consultation requirement would be proper. As for adjustment of status or waiver applications, those may still be denied using traditional discretionary factors. Because 204(l) does not permit a denial based solely on the lack of the qualifying family relationship, 15 however, a discretionary denial that is based on the death of the qualifying relative should be reviewed for appeal. Humanitarian Reinstatement In cases involving a petition that had been approved prior to the death of the petitioner, USCIS takes the position that a kind of hybrid type of humanitarian reinstatement is to be applied. 16 This treatment runs contrary to the plain language of the statute, and it elevates the old humanitarian reinstatement regulations above the level of the statute. 17 The guidance is also confusing in that it explains that discretion should be generally appropriate in cases covered under 204(l). 18 In light of the fact that, outside public interest denials, visa petition adjudications are nondiscretionary, this guidance is at odds with the statute and accepted adjudicatory standards. Additionally, it appears to make beneficiaries of approved petitions more vulnerable than those of pending petitions. U and T Visa Considerations There is some concern that 204(l) may not provide any greater protection to U and T nonimmigrants than was already granted by the statute, regulations, and current USCIS policy. For example, the guidance states that if the surviving relative already had status as a T or U nonimmigrant derivative at the time of death of the qualifying relative, the surviving relative may apply for adjustment of status. This was already granted by the U adjustment regulations and the policy of USCIS, which considers U derivatives to be separate from the principals when it comes time to adjust. In addition, 204(l) leaves several significant groups out in the cold; for example, an applicant for derivative U nonimmigrant status who resided in the United States. If that applicant traveled abroad while the U application was pending (before it was approved), and the principal died before the derivative could return, the derivative would not benefit from 204(l) even though he or she resided in the United States and even though the U status had been approved. The statute requires that the U nonimmigrant be admitted in that status before benefiting from 204(l). If the derivative was abroad when the U status was approved, he was not admitted before the principal died. The second large group of individuals who cannot benefit from 204(l) are family members of U principals who never hold U status. Under INA 245(m) a family member can adjust his or her status or obtain an immigrant visa if such a grant is necessary to avoid extreme hardship. An alien who might otherwise be the beneficiary of an adjustment of status under this section cannot obtain status if the principal dies because he or she has not held U nonimmigrant status before the principal died. The third group of individuals who might be harmed by this section are derivatives who have aged out. USCIS is currently considering guidance on how to deal with derivative children who age out (reach the age 14 Policy Memo, p DHS Appropriations Act for FY 2010, Pub. L. No , Title V, 568(d)(2), 123 Stat (Oct. 28, 2009), provides: (2) Construction. Nothing in the amendment made by paragraph (1) may be construed to limit or waive any ground of removal, basis for denial of petition or application, or other criteria for adjudicating petitions or applications as otherwise provided under the immigration laws of the United States other than ineligibility based solely on the lack of a qualifying family relationship as specifically provided by such amendment. 16 Policy Memo, pp ; p The Humanitarian Reinstatement Regulations can be found at 8 CFR 205.1(a)(3)(i)(C). The Adjudicator s Field Manual deals with the issue at AFM 21.2(h)(1)(C), as amended by the Policy Memo. 18 Policy Memo, pp ; p. 15. Copyright 2011 American Immigration Lawyers Association

6 SURVIVING RELATIVES: NEW WAYS TO RESUSCITATE A DEAD PETITION OR APPLICATION 115 of 21). It has previously stated that derivative children will age out and lose their status at 21. For this reason, recently issued U visas are being granted only until the day that the derivative turns 21, even if that is less time in U status than the principal will have. Thus, only those derivative children who obtain U status by age 18 will have the requisite time in U status (three years) to adjust on their own. The Vermont Service Center is holding back the older applications of derivative children who turned 21 before the principal s status was approved, rather than denying them, pending the forthcoming guidance. For those derivatives whose applications are still pending because they have already aged out, the question is open as to whether they would benefit from INA 204(l). If the principal dies, the language of the statute would not allow a derivative to obtain status because the derivative must have already held such status at the time that the principal died. Copyright 2011 American Immigration Lawyers Association

7 U.S. Department of Homeland Security 20 Massachusetts Ave., NW Washington. DC U.S. Citizenship and Immigration Services Interoffice Memorandum HQDOMO 70/6.1.I-P 70/6.1.3-P AFMUpdate ADIO-09 To: Executive Leadership From: Donald Neufeld n.. Acting Associate ~r Domestic Operations Directorate J~ri ScialaMf.(./. 11 Associat..- II Refug, urn, and International -erations Directorate ~ /'YY/ Pearl Chang Acting Chief L~73- Office ofpolicy and Strategy Date: DEC r SUBJECT: Additional Guidance Regarding Surviving Spouses ofdeceased U.S. Citizens and their Children (REVISED) Effect offy2010 DRS Appropriations Act on eligibility to immigrate after death ofvisa petitioner Revisions to Adjudicator's Field Manual (AFM) Chapter(s) 21.2(a)(4) and (h)(l)(c) (AFM Update AD10-09) I. Purpose This memorandum supersedes an earlier memorandum on this subject, dated November 13, 2009, and provides updated guidance to U.S. Citizenship and Immigration Services (USCIS) field offices and service centers regarding the processing offorms 1-130, petitions for alien relative, and 1-485, application to register permanent residence or adjust status, filed by surviving spouses ofdeceased U.S. citizens and the qualifying children ofthe surviving spouses. This new guidance is based on the enactment ofsection 568(c) ofthe Department ofromeland Security Appropriations Act, 2010, Pub. L. No , 123 Stat. 4142,4186 (2009), which provides AILA InfoNet Doc. No (Posted on 12/14/09).

8 SUBJECT: Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (FY2010 DHS Appropriations Act) AFM Update Page 2 relief for these aliens. Section 568(c) entered into force on October 28,2009, the date of enactment. Sections 568(d) and (e) ofthe FY2010 DHS Appropriations Act, which provide relief for aliens who are surviving beneficiaries ofcertain pending or approved petitions filed by certain qualifying categories ofnoncitizens, will be addressed in a separate memorandum. II. Background A. Prior Policy and Related Litigation For many years, U.S. immigration policy has been that a Form could not be approved ifthe petitioner died while the Form was pending. See Matter o/sano, 19 I&N Dec. 299 (BIA 1985); Matter o/varela, 13 I&N Dec. 453 (BIA 1970). As far back as 1938, our immigration regulations have provided for the revocation ofthe approval ofa visa petition upon the petitioner's death. More recently, the regulations, while maintaining that general policy, have provided for discretion, for "humanitarian reasons," to reinstate the approval. 8 C.F.R I(a)(3)(i)(C)(2). Also, since 2006,8 C.F.R (i)(1)(iv) and (a)(3)(i)(C)(1) have provided that the automatic revocation provision does not apply to a spousal immediate relative visa petition, ifthe deceased petitioner and the alien widow(er) had been married at least two years when the petitioner died. Over the past several years, widow(er)s ofcitizens who had died before the second anniversary ofthe underlying marriages have challenged this long-standing policy as being inconsistent with the statute. The federal courts ofappeals have split on the legal issue. Compare Robinson v. Napolitano, 554 F.3d 358 (3d Cir. 2009) (sustaining agency view that petitioner's death while a Form is pending ends the beneficiary's eligibility); petition/or cert.jiled, No (U.S. filed July 23,2009), with Taing v. Napolitano, 567 F.3d 19 (1st Cir. 2009) (holding agency policy violative ofstatute); Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. 2009) (same); and Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006) (same). The issue has engendered much litigation before the federal district courts in recent months, with most courts ruling against the agency. Among the unfavorable decisions is. the class action ruling in Hootkins v. Napolitano, _ F. Supp. 2d _,2009 WL (C.D. Cal. Apr. 28, 2009), which is on appeal to the Ninth Circuit Court ofappeals. Other cases are pending in district courts throughout the United States. B. Section 568(c) of FY2010 DHS Appropriations Act Congress, however, recently acted to resolve the issue. On October 28,2009, the President signed into law the FY2010 DHS Appropriations Act. Section 568(c) ofthe new law amends the second sentence in section 201 (b)(2)(a)(i) ofthe INA so that, for a widow(er) ofa citizen to qualify as an immediate relative, it is no longer necessary for the couple to have been married at least two years when the citizen died. The second sentence ofsection 201 (b)(2)(a)(i) now reads, AILA InfoNet Doc. No (Posted on 12/14/09).

9 SUBJECT: Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (FY2010 DHS Appropriations Act) AFM Update Page 3 In the case ofan alien who was the spouse ofa citizen ofthe United States and was not legally separated from the citizen at the time ofthe citizen's death, the alien (and each child ofthe alien) shall be considered, for purposes ofthis subsection, to remain an immediate relative after the date ofthe citizen's death but onlyifthe spouse files a petition under [section 204(a)(1)(A)(ii) ofthe INA] within 2 years after such date and only until the date the spouse remarries. When a widow(er) qualifies as an immediate relative under the second sentence in section 201 (b)(2)(a)(i) ofthe INA, his or her children, as defined in sections 101(b)(1) and 20l(f) ofthe INA, also qualify. The amendment made by section 568(c) applies equally to aliens abroad who are seeking immigrant visas and aliens in the United States who are seeking adjustment of status. The amendment applies to any alien whose spouse died before October 28,2009, and who had a Form pending on October 28,2009. Ifno Form was pending, then an alien whose U.S. citizen spouse died before October 28,2009, and before the second anniversary oftheir marriage, may file a visa petition under section 204(a)(l)(A)(ii) ofthe INA so long as (a) the alien has not remarried, and (b) the petition is filed no later than October 28, Section 568(c) relates only to the impact ofthe citizen's death on the alien's eligibility for classification as an immediate relative. All other requirements for approval ofa visa petition remain in force. In particular, the alien must still establish that he or she was the citizen's legal spouse, and that the marriage was a bona fide marriage and not an arrangement solely to confer immigration benefits on the alien. If the alien was in removal proceedings at the time ofthe marriage, the "clear and convincing evidence" standard in section 245(e)(3) ofthe INA will still apply to the adjudication ofthe visa petition. Ifthe necessary visa petition is approved, the alien may then seek an immigrant visa or adjustment of status. The alien must still establish that he or she is admissible as an immigrant and, in an adjustment case, that he or she meets all other adjustment eligibility requirements and merits a favorable exercise ofdiscretion. In light ofthis new legislation, the policy guidance stated in the November 8, 2007, memorandum entitled "Effect ofform Petitioner's Death on Authority to Approve the Form 1-130" (AFMUpdate AD08-04) is obsolete. This memorandum amends the Adjudicator's Field Manual to remove the material added in that earlier memorandum. III. Policy Guidance and AFM Update AFMUpdate 1. Chapter 21.2 ofthe AFMentitled "Factors Common to the Adjudication ofall Relative Visa Petitions" is amended by a. Removing chapter 2l.2(a)(4) b. Removing the Note at the end ofchapter 21.2(h)(1)(C). AILA InfoNet Doc. No (Posted on 12/14/09).

10 SUBJECT: Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (FY2010 DHS Appropriations Act) AFM Update Page 4 A. Widow(er)s with pending cases Section 568(c)(2)(A) ofthe FY2010 DRS Appropriations Act makes the amendment to the second sentence in INA section 201 (b)(2)(a)(i) applicable to any visa petition or adjustment application "pending on or after the date ofenactment." As noted, the date ofenactment is October 28, Reopening ofpending Form cases For purposes ofthis amendment, a Form will be deemed "pending" on October , if the deceased citizen had filed a Form on or before that date but: USCIS has not adjudicated the Form 1-130; USCIS denied the Form 1-130, but USCIS granted a motion to reopen or reconsider, so that the Form is, again, pending; USCIS denied the Form 1-130, but has not yet ruled on a motion to reopen or reconsider; USCIS denied the Form 1-130, but the alien's appeal from that decision is pending before the Board ofimmigration Appeals (BIA) or the period for appeal ofthe adverse USCIS decision to the BIA had not yet expired; or The USCIS or BIA decision denying the Form is the subject ofpending litigation before a federal court (including cases in which the district court issued a decision before October 28,2009, but the appeals period established by law had not yet expired). Under 8 C.F.R (i), a citizen's spousal Form is automatically converted to a widow(er)'s Form if, on the date ofthe citizen's death, the beneficiary qualifies as a widow(er) under the second sentence in section 20 1(b)(2)(A)(i). Under section 568(c) ofthe FY2010 DRS Appropriations Act, these aliens now qualify under the second sentence. Thus, any Form that is "pending" as described in the preceding paragraph will be deemed to be, and adjudicated as, a widow(er)'s Form In any Form case in which a motion to reopen or for reconsideration was filed, but not acted on, USCIS will grant the motion and make a new decision in light ofsection 568(c) ofthe FY20 I0 DRS Appropriations Act. Any Form that is the subject oflitigation in any federal court on the issue ofthe effect of the petitioner's death is, as ofthe date ofthis memorandum, reopened for a new decision in light ofsection 568(c) ofthe FY201 0 DRS Appropriations Act. The beneficiary need not file a separate motion. Nor does it matter, for purposes ofreopening the Form 1-130, whether the beneficiary is currently in the United States or abroad. Ifthe decision denying or terminating action on the Form was pending in any court on October 28, 2009, the decision is now AILA InfoNet Doc. No (Posted on 12/14/09).

11 SUBJECT: Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (FY201O DHS Appropriations Act) AFM Update Page 5 reopened. USCIS will therefore make a new decision in light ofsection 568(c) ofthe FY20 I0 DHS Appropriations Act. Cases challenging the denial ofa spousal immediate relative Form based on the petitioner's death have been filed in district courts throughout the United States. USCIS officers must consult with the appropriate regional or service center counsel to identify those cases that are the subject oflitigation that was pending on October 28,2009. Once a case is identified as subject to reopening under this memorandum, the USCIS officer will notify the alien in writing that the Form is reopened in light ofsection 568(c) ofthe FY2010 DHS Appropriations Act, and will be readjudicated as a Form Ifit is determined that a Form had been filed but was not "pending" on October 28,2009, because a USCIS decision denying the Form had become final before October 28, 2009 (and no administrative appeal or civil action challenging the denial was pending on October 28, 2009), please refer to part III(B) ofthis memorandum. 2. Reopening ofpending Form /-485 cases Section 568(c)(2)(A) ofthe FY2010 DHS Appropriations Act also makes the amendment applicable to any Form that was pending on the date ofenactment. A Form is deemed "pending" on the date ofenactment ifit was filed before the deceased citizen's death but: USCIS has not adjudicated the Form USCIS denied the Form 1-485, but USCIS granted a motion to reopen or reconsider, so that the Form is, again, pending USCIS denied the Form 1-485, but has not yet ruled on a motion to reopen or reconsider; The Form is the subject oflitigation before a federal court (including cases in which the district court issued a decision before October 28, 2009, but the appeals period established by law had not yet expired). With this guidance memo, USCIS also reopens, without the need for a formal motion, any Form that is the subject oflitigation on this issue in any federal court, ifuscis still has jurisdiction to act on the Form As with the reopening of the related Form 1-130, the USCIS officer will notify the applicant in writing that the Form is reopened in light of section 568(c) ofthe FY2010 DHS Appropriations Act. In the case ofa widow(er) who entered the United States as a K-l nonimmigrant, and filed a Form after marrying the deceased citizen who had filed the Form 1-129F, ordinarily there will not be a Form Ifthe Form is still "pending" as described in this memo, and USCIS still has jurisdiction to act on it, the Form will also be reopened for a new decision in light ofsection 568(c) ofthe FY2010 DHS Appropriations Act, without the need for a formal AILA InfoNet Doc. No (Posted on 12/14/09).

12 SUBJECT: Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (FY201 0 DHS Appropriations Act) AFM Update Page 6 motion. Since no Form is required for a K-I nonimmigrant to seek adjustment after marrying the K petitioner within the period specified by statute, the K-1 nonimmigrant will also be deemed the beneficiary ofa Form ifthe K-1 nonimmigrant now qualifies as a widow(er). The K-1 nonimmigrant still may not adjust on any basis other than the K-1 nonimmigrant's having married the citizen petitioner who filed the Form 1-129F. Some aliens may have been placed into removal proceeding after USCIS denied their Forms Except for "arriving aliens," this factor would mean that USCIS no longer has jurisdiction to adjudicate the Form C.F.R (a)(1) and (a)(1). USCIS would have jurisdiction to adjudicate the Form only ifthe Executive Office for Immigration Review (EOIR) terminated the removal proceeding. Whether to support or oppose terminating a removal proceeding is a matter for U.S. Immigration and Customs Enforcement to decide, not USCIS. If a USCIS office reopens a Form involving an alien in removal proceedings, the USCIS office must, through the appropriate USCIS counsel, advise the local counsel for U.S. Immigration and Customs Enforcement. Some aliens whose citizen spouses had died may have left the United States voluntarily, without obtaining a grant ofadvance parole. Others may have left after obtaining advance parole, but may have remained abroad after expiration ofthe Form Under 8 C.F.R (a)(ii)(4)(B), these aliens have abandoned their adjustment applications. Also ~bandoned is the adjustment application ofan alien who left as the result ofremoval proceedings. 8 C.F.R (a)(4)(ii)(A). In these situations, a Form will not be deemed "pending" for purposes ofsection 568(c)(2)(A). However, where section 568(c) applies to the approved Form 1-130, and the Form has been approved as a Form 1-360, the alien approved on that who has left the United States may apply for an immigrant visa abroad. 3. Petition already approved before death Ifa widow(er) is the beneficiary ofa Form that was approved before the citizen petitioner's death, it is not necessary for the widow(er) to request humanitarian reinstatement of the approval. Under 8 C.F.R (i)(1 )(iv), the approved Form is automatically converted to an approved Form Any children ofthe widow(er) will also be eligible to seek an immigrant visa or adjustment ofstatus based on the converted petition. There may be some cases in which a spousal immediate relative Form was approved, but the approval was revoked automatically under 8 C.F.R (a)(3)(i)(C) upon the citizen petitioner's death. Ifthe alien is now eligible for classification as the widow(er) ofa citizen under section 568(c)(2)(A) of the FY2010 DHS Appropriations Act, the approval will be deemed to have been reinstated, effective October 28,2009. No separate request for reinstatement is necessary. Under 8 C.F.R (i)(1)(iv), the Form will be deemed to be an approved Form AILA InfoNet Doc. No (Posted on 12/14/09).

13 SUBJECT: Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (FY2010 DHS Appropriations Act) AFM Update Page 7 4. Admissibility issues Whether an alien is actually admissible is not gennane in adjudicating a Fonn Matter of 0-, 8 I&N Dec. 295 (BIA 1959). The only issue resolved by enactment ofsection 568(c) ofthe FY2010 DHS Appropriations Act is that the death ofthe citizen spouse, by itself, does not make the widow(er) ineligible for immediate relative classification. Thus, the alien must still be admissible as an immigrant to obtain adjustment ofstatus or an immigrant visa. For those aliens, however, who had pending Fonn cases, and who now can benefit from section 568(c) ofthe FY2010 DHS Appropriations Act, two inadmissibility grounds warrant special consideration. The first is section 212(a)(9)(B)(i) ofthe Act, under which an alien is inadmissible ifthe alien seeks admission within a specified period after the alien leaves the United States, ifthe alien has accrued a lengthy period ofunlawful presence. The second is section 212(a)(9)(A), under which an alien who has been removed (or who left the United States while under a final administrative order ofremoval) must obtain consent to reapply, ifthe alien seeks admission within the period set in section 212(a)(9)(A). It is important to note that the special provisions in this memorandum relating to INA section 212(a)(9)(A) and (B) apply only to an alien who was the beneficiary ofa Fonn that was filed by a now-deceased spouse petitioner, and that can now be approved as a Fonn under section 568(c) ofthe FY2010 DHS Appropriations Act. The purpose ofthese special provisions is simply to minimize the adverse effect on these aliens ofthe disputed, and now resolved, issue ofthe impact ofthe death ofthe petitioning spouse on the alien's eligibility. a. Unlawful presence By specifying, in section 568(c)(2)(A) ofthe FY2010 DHS Appropriations Act, that the amendment should apply to pending cases, Congress indicated its desire to resolve these cases fully. For this reason, for purposes of INA section 212(a)(9)(B)(i), if an alien remained in the United States while awaiting the outcome offonn that can now be approved as a Fonn under section 568(c) ofthe FY2010 DHS Appropriations Act, the alien will be deemed not to have accrued any unlawful presence. This protection applies even ifthe alien was not actually in a lawful status while the now-converted Form was pending. An alien who had a Fonn pending on October 28, 2009, but who is present in the United States without a lawful admission or parole generally cannot obtain adjustment under INA section 245(a). Rather, the alien must generally seek adjustment under INA section 245(i). But this relief is not available to an alien who did not have a petition or labor certification filed before April 30, Thus, even if the Form can now be approved as a Form 1-360, the alien may need to leave the United States to obtain an immigrant visa. But since, under this guidance memorandum, the alien will be deemed not to have accrued any unlawful presence, he or she will not be inadmissible under INA secti9n 212(a)(9)(B)(i). Again, these special provisions relating to the accrual ofunlawful presence apply only to an alien who is the beneficiary ofa spousal immediate relative Form that was pending on October AILA InfoNet Doc. No (Posted on 12/14/09).

14 SUBJECT: Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (FY2010 DHS Appropriations Act) AFM Update Page 8 28,2009, and that is now approved under section 568(c)(2)(A) ofthe FY2010 DHS Appropriations Act and 8 C.F.R (i)(1)(iv) as a widow(er)'s Form 1-360: the widow(er) and his or her accompanying child(ren). Ordinarily, the pendency ofa visa petition, itself, does not prevent accrual ofunlawful presence. A pending adjustment application, by contrast, does prevent accrual ofunlawful presence. Adjudicator's Field Manual chapter 40.9(b)(3)(A). Most aliens who have been in litigation because the death ofa spouse led to denial ofthe Form are probably already protected from unlawful presence under the ordinary provisions in the AFM. This broader protection against unlawful presence, for this narrow class ofcases, is designed to maximize the ability ofthose aliens whose specific situations gave rise to the new legislation to fully benefit from it. b. Consent to reapply for admission after removal These protections against accrual ofunlawful presence apply even ifthe alien was actually removed from the United States under a removal order. Still, because the alien was removed under a valid order, the alien is inadmissible under INA section 212(a)(9)(A)(i) or (ii). USCIS, however, has discretion under section 212(a)(9)(A)(iii) to consent to the alien's re-application for admission. USCIS should generally exercise discretion favorably and grant an application for consent to reapply under section 212(a)(9)(A)(iii), if: The Form that had been filed by the alien's spouse has now been approved as a Form under section 568(c) ofthe FY2010 DHS Appropriations Act; The alien is otherwise admissible, and The alien's case does not present significant adverse factors beyond the removal itself. A USCIS adjudicator will not deny a Form filed by an alien whose case was in litigation on October 28,2009, and whose Form has been approved as a Form under section 568(c)(2)(A) ofthe FY2010 DHS Appropriations Act without consulting USCIS Headquarters through appropriate channels. 5. Remarriage Any immediate relative Form that was filed on behalfofthe spouse ofa U.S. citizen, and that was pending on October 28,2009, is no longer a spousal immediate relative Form By operation of8 C.F.R (i)(I)(iv), what was filed as a spousal immediate relative Form is now a widow(er)'s Form The converted Form may be approved onlyif the beneficiary, who is now also deemed to be the petitioner, qualifies as the widow(er) ofa citizen, as described in INA section 201(b)(2)(A)(i). Eligibility for classification as an immediate relative continues "only until the date the spouse remarries." AILA InfoNet Doc. No (Posted on 12/14/09).

15 SUBJECT: Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (FY2010 DHS Appropriations Act) AFM Update Page 9 6. Ninth Circuit cases In acting on the guidance in this memorandum, USCIS adjudicators must keep in mind that the Hootkins case was certified as a class action. Thus, an individual need not be a named Plaintiff in Hootkins in order for his or her Form and Form to be reopened under this memorandum. Ifan individual has not already been identified as a member ofthe Hootkins class, that individual may make a written request to have his or her Form and Form reopened and readjudicated. The purpose ofthe written request is simply to identify the case as a Hootkins case. The individual is not required to pay the filing fee for a motion to reopen. The case will be considered a Hootkins class member case ifthe case was denied on or after August 30,2001,1 and: either the citizen spouse petitioner or the alien spouse beneficiary lived in the Ninth Circuit when the citizen spouse died; or a USCIS office in the Ninth Circuit made the prior decision on the Form or Form B. Widow(er)s without pending cases The alien widow(er) ofa citizen who died before October 28,2009, but who did not have a Form pending on that date, may now file a Form 1-360, provided that he or she does so no later than October 28,2011, and has not remarried. FY2010 DHS Appropriations Act 568(c)(2)(B). Section 568(c)(2)(B) applies ifthe citizen spouse did not file a Form on the alien spouse's behalfbefore dying. But it also applies ifthere was a Form filed, but the decision denying the Form had become administratively final before October 28,2009, because the decision was not the subject ofany type ofadministrative or judicial review that was pending on October 28,2009. Note that section 568(c)(2)(B)(i) says the Form must be filed "not later than the date that is 2 years after the date ofthe enactment." Thus, a Form that is filed on October 28,2011, will still be timely. A Form filed on or after October 29,2011, will be untimely. For any case in which a citizen dies on or after October 28,2009, the alien widow(er) must file the Form within 2 years ofthe citizen's death. C. Children ofwidow(er)s The child ofa widow(er) whose Form is approved may, as specified in the second sentence of INA section 20 1(b)(2)(A)(i) and in INA section 204(a)(1)(A)(ii), be included in the widow(er)'s petition. Whether an individual qualifies as the widow(er)'s "child" is determined according to INA sections 101(b)(l) and 20l(f). 1 Any case denied before August 30,2001, is time-barred under 28 U.S.c. 2401(a). But even ifa Ninth Circuit case is not considered "pending" because ofhootkins, the alien may still be eligible to immigrate as the widow(er) ofa citizen, ifthe alien has not remarried and files the Form no later than October 28,2011. AILA InfoNet Doc. No (Posted on 12/14/09).

16 SUBJECT: Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (FY201 0 DHS Appropriations Act) AFM Update Page 10 In a case in which the deceased citizen had filed a Form for his or her spouse, and the Form can now be adjudicated as a Form widow(er)'s petition, the child(ren) ofthe widow(er) will be deemed to be included in the converted Form Thus, it will not be necessary to act on any separate Form(s) that the deceased citizen may have filed for the widow(er)'s children. And the child(ren) ofthe widow(er) will be deemed included in the converted Form even ifthe deceased citizen had not filed any Form(s) for the child(ren). Note that, in light ofina section 201(f), whether an individual qualifies as the "child" ofa widow(er) depends on the individual's age when the visa petition was filed. For those cases that were pending on October 28,2009, the Form filing date is deemed to be the date on which the deceased citizen filed the prior Form If a widow(er) has an unmarried son or daughter who was under 21 when the deceased citizen filed the Form 1-130, that individual will still be deemed to be under 21 for purposes ofthe widow(er)'s now-converted Form D. Affidavits of support Under section 212(a)(4)(C)(i)(I) ofthe INA, a Form (Affidavit ofsupport under Section 213A ofthe Act) is not required in the case ofthe widow(er) ofa citizen and the widow(er)'s accompanying children. 2 E. Conversion of deferred action applications filed under prior guidance While remedial legislation was pending in Congress, the Secretary ofhomeland Security directed the use ofdeferred action relief to allow widow(er)s ofcitizen whose cases may have been affected by the legislation to remain in the United States. In the September 4, 2009 Memorandum, "Guidance Regarding Surviving Spouses ofdeceased U.S. Citizens and their Children," USCIS designated the Form as the form an individual would use to request deferred action under the Secretary's policy. Now that Congress has enacted the legislation, any Form that had been filed to obtain deferred action relief, and that has not yet been adjudicated as a deferred action request, will now be considered to be, and adjudicated as, a widow(er)'s visa petition under 8 C.F.R (b). If the Form has already been approved as a deferred action request, it will be reopened and adjudicated as a visa petition under 8 C.F.R (b). It is not necessary for the alien to file a formal motion, nor to pay a new Form filing fee. Additionally, any prior grant of deferred action reliefneed not be rescinded and should remain undisturbed. 2 There may be an individual case in which, regardless ofthe Form I-864 issue, the factors specified in INA section 2 I2(a)(4)(B) and the standard public charge guidance, as published at 64 Fed. Reg (1999), will support a finding that a widow(er) is inadmissible as an alien likely to become a public charge. Even in this case, a Form is not required. Rather, since the statute does not specifically require the Form 1-864, the Form can be used instead. 8 C.F.R. 2 I3a.5. It is important to note that, on a Form 1- I34, the sponsor does not have to meet the requirements in INA section 21 3A(t), and so does not need to be someone who could have been a "substitute sponsor" in a case in which a Form actually is required. AILA InfoNet Doc. No (Posted on 12/14/09).

17 SUBJECT: Additional Guidance Regarding Surviving Spouses of Deceased u.s. Citizens and their Children (FY2010 DHS Appropriations Act) AFM Update Page 11 Under the deferred action guidance, an alien could file a Form 1-765, application for employment authorization, only ifthe deferred action request had been granted. Now that a Form that was filed to request deferred action is deemed to be a widow(er)'s visa petition, the alien can, if otherwise eligible, file a Form even before the approval ofthe Form C.F.R 245.2(a)(2)(i)(B). Filing the Form permits the alien to file a Form C.F.R. 274a.l2(c)(9). F. Implementation Section 568(c) ofthe FY2010 DRS Appropriations Act became effective on October 28,2009, the date ofenactment. USCIS offices and centers, therefore, are to begin implementing the instructions established in this memorandum immediately. USCIS adjudicators should note that Congress clearly intended to benefit the aliens affected by these provisions. AFMTransmittal Memorandum Revisions. The AFMTransmittal Memorandum button is revised by adding a new entry, in numerical order, to read: AD Chapter 21.2 This memorandum removes [Date ofsignature] chapter 21.2(a)(4) and the Note at the end ofchapter 21.2(h)(1)(C) to reflect enactment ofsection 568(c) of Public Law H. Contact Information Questions regarding this memorandum should be directed to the Office of Domestic Operations through appropriate channels. For cases adjudicated overseas, questions should be directed to the International Operations Division, Programs Branch. This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person. Distribution: Regional Directors District Directors Field Office Directors National Benefits Center Director Service Center Directors AILA InfoNet Doc. No (Posted on 12/14/09).

18 U.S. Citizenship and Immigration Services Office of the Director (MS 2000) Washington, DC December 16, 2010 PM Policy Memorandum SUBJECT: Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act Revisions to Adjudicator s Field Manual (AFM): New Chapter and an Amendment to Chapter 21.2(h)(1)(C) (AFM Update AD-10-51) Purpose This Policy Memorandum (PM) ensures that USCIS uniformly and consistently adjudicates petitions and applications in light of section 204(l) and 213A(f)(5) of the Immigration and Nationality Act ( the Act ), 8 U.S.C. 1154(l) and 1183a(f)(5). Scope Unless specifically exempted herein, this PM applies to and is binding on all USCIS employees. Authority Sections 204(l) and 213A(f)(5) of the Act, 8 U.S.C. 1154(l) and 1183a(f)(5), as amended by 568(d) and (e) of the DHS Appropriations Act, 2010, Public Law ( Public Law ), 123 Stat. 2142, (2009). Background For many years, USCIS had taken the position that the law did not permit the beneficiary of a visa petition to obtain approval of the petition if the petitioner died while the petition remained pending. See Matter of Sano, 19 I&N Dec. 299 (BIA 1985); Matter of Varela, 13 I&N Dec. 453 (BIA 1970). New section 204(l) of the Act changes this governing law with respect to an alien who is seeking an immigration benefit through a deceased qualifying relative. Section 204(l) permits the approval of a visa petition or refugee/asylee relative petition, as well as any adjustment application and related application, if the alien seeking the benefit: 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 at least one of the following: The beneficiary of a pending or approved immediate relative visa petition; AILA InfoNet Doc. No (Posted 01/10/11)

19 PM : Subject New INA Section 204(l) Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update Page 2 The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries; Any derivative beneficiary of a pending or approved employment-based visa petition; The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative Petition; An alien admitted as a derivative T or U nonimmigrant; or A derivative asylee under section 208(b)(3) of the Act. Section 568(d) of Public Law does not expressly define the qualifying relative. From the list of aliens to whom the new section 204(l) applies, however, USCIS infers that qualifying relative means an individual who, immediately before death, was: The petitioner in a family-based immigrant visa petition under section 201(b)(2)(A)(i) or 203(a) of the Act; The principal beneficiary in a family-based visa petition case under section 201(b)(2)(A)(i) or 203(a) of the Act; The principal beneficiary in an employment-based visa petition case under section 203(b) of the Act; The petitioner in a refugee/asylee relative petition under section 207 or 208 of the Act; The principal alien admitted as a T or U nonimmigrant; or The principal asylee, who was granted asylum under 208 of the Act. Section 568(e) of Public Law provides a conforming amendment to INA section 213A(f)(5)(B) relating to affidavits of support. INA section 212(a)(4)(C) provides that, to avoid public charge inadmissibility, most immediate relatives and family-based immigrants, and some employment-based immigrants, must have filed an affidavit of support on their behalf that meets the requirements of INA section 213A. If, after the death of a qualifying relative, a visa petition is approved or not revoked under new INA section 204(l), then another individual who qualifies as a substitute sponsor must submit a Form I-864, Affidavit of Support under section 213A of the Act. If the alien is not required under sections 212(a)(4)(C) and 213A of the Act and 8 C.F.R. 213a.2(a)(2)(ii) to have a legally binding affidavit of support, then there is no need for a substitute sponsor to submit a Form I-864. Policy USCIS officers will follow section 204(l) and section 213A(f)(5) of the Act, as amended by sections 568(d) and (e) of Public Law , and the amendments to the Adjudicator s Field Manual (AFM) made by this PM, in adjudicating on or after October 28, 2009, any petition or application to which section 204(l) and section 213(A)(1)(5) apply. Section 568(d) and (e) of Public Law became effective on October 28, 2009 when the President signed Public Law This PM applies to any case adjudicated on or after October 28, 2009 even if the case was filed before October 28, AILA InfoNet Doc. No (Posted 01/10/11)

20 PM : Subject New INA Section 204(l) Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update Page 3 For a case denied before October 28, 2009 USCIS policy is that an alien may file, with the proper filing fee, an untimely motion to reopen a petition, adjustment application, or waiver application, if new section 204(l) would now allow approval of a still-pending petition or application. See AFM chapter 20.5(c)(8), as added by this PM, for complete guidance on this issue. Implementation The AFM is amended as follows. 1. New Chapter is added to the AFM, to read as follows Approval of pending immigrant visa petitions, T or U extension applications, asylee/refugee relative petitions, or applications after death of the qualifying relative. (a) General. Except as specified in this chapter, if the approval of an immigrant visa petition, refugee/asylee relative petition or application for immigration benefits requires the existence of a family relationship between the alien and another individual, the death of the petitioner or other individual while the case is pending requires the denial of the petition or application. (b) Widow(er)s of Citizens. Paragraph (a) of this chapter does not apply to a Form I-130 filed by a citizen on behalf of his or her spouse. Upon the death of the citizen petitioner, Form I-130 is converted to a widow(er) s Form I-360. In light of the amendment to section 201(b)(2)(A)(i) of the Act by section 568(c) of Public Law , this conversion takes place even if the citizen and alien were married for less than 2 years when the citizen died. In the case of a K-1 nonimmigrant who marries the petitioner within 90 days of admission, the K-1 nonimmigrant (and any K-2 children who are otherwise eligible) may obtain adjustment of status without the need for Form I-360, just as they would have been eligible for adjustment without Form I-130, if the petitioner had not died. If an alien was admitted as a K-3 or K-4 nonimmigrant, the Form I-130 filed for the K-3 is converted to a Form I-360 upon the citizen petitioner s death. The K-4 can then accompany or follow to join the K-3 based on that Form I-360. A widow(er) s eligibility for adjustment ends if the widow(er) remarries before obtaining LPR status. AILA InfoNet Doc. No (Posted 01/10/11)

21 PM : Subject New INA Section 204(l) Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update Page 4 A USCIS officer may encounter a case in which a petition or application was approved before October 28, 2009, despite the death of the citizen spouse who filed the petition. The approval may have occurred because USCIS was unaware of the death, or because the alien persuaded USCIS that the death did not end eligibility. In some circuits, but not all, there were precedents from the relevant courts of appeals supporting approval of an immediate relative spousal Form I-130 after the petitioner s death. In light of those precedents, and given the intent of section 568(c) of Public Law , USCIS will deem the approval of the petition and the grant of adjustment proper, and will not seek to rescind a grant of adjustment, if the sole basis for doing so is the death of the citizen spouse and the resulting invalidity of the Form I-864 filed by the citizen spouse. (c) Effect of Section 204(l) of the Act. Paragraph (a) of this chapter does not apply, and a petition or application may be approved despite the death of the qualifying relative, if section 204(l) of the Act, as amended by section 568(d) of the FY2010 DHS Appropriations Act, Public Law , applies to the case. See paragraph (c)(6) of this chapter concerning the authority to deny these cases on discretionary grounds. Section 568(d)(2) of Public Law specifies that new section 204(l) does not limit or waive any eligibility requirements or bars to approval of a petition or application other than the lack of a qualifying relative due to the qualifying relative s death. Thus, no other eligibility requirements are changed by the enactment of section 204(l). (1) When Section 204(l) Applies. Section 204(l) of the Act applies to any immigrant visa petition, refugee/asylee relative petition, or application adjudicated on or after October 28, 2009, even if the petition or application was filed before that date. Section 204(l) allows the approval of a pending petition or application, despite the death of the qualifying relative, if the alien seeking the benefit of section 204(l): 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 at least one of the following: The beneficiary of a pending or approved immediate relative visa petition; The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries; o Any derivative beneficiary of a pending or approved employment-based visa petition; The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative Petition; An alien admitted as a derivative T or U nonimmigrant; or A derivative asylee under section 208(b)(3) of the Act. AILA InfoNet Doc. No (Posted 01/10/11)

22 PM : Subject New INA Section 204(l) Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update Page 5 The new section 204(l) does not expressly define the qualifying relative. From the list of aliens to whom new section 204(l) applies, USCIS infers that qualifying relative means an individual who, immediately before death was: The petitioner in an immediate relative or family-based immigrant visa petition under section 201(b)(2)(A)(i) or 203(a) of the Act; The principal beneficiary in a widow(er) s immediate relative or a family-based visa petition case under section 201(b)(2)(A)(i) or 203(a) of the Act; The principal beneficiary in an employment-based visa petition case under section 203(b) of the Act; The petitioner in a refugee/asylee relative petition under section 207 or 208 of the Act; The principal alien admitted as a T or U nonimmigrant; The principal asylee, who was granted asylum under 208 of the Act. Section 204(l) applies to a petition or application adjudicated on or after October 28, 2009, even if the qualifying relative died before October 28, If a petition or application was denied on or after October 28, 2009, without considering the effect of section 204(l), and section 204(l) could have permitted approval, USCIS must, on its own motion, reopen the case for a new decision in light of section 204(l). See chapter 10.21(c)(8) of this AFM for guidance on cases denied before October 28, Section 101(a)(33) of the Act governs the determination whether an alien resided in the United States when the qualifying relative died, and whether the alien continues to reside in the United States. A person s residence is his or her principal, actual dwelling place in fact, without regard to intent. If the alien s residence was in the United States at the required times, the alien resided here. The statute does not bar an alien who was actually abroad when the qualifying alien died from proving that the alien still resides in the United States. Also, section 204(l) of the Act does not require the alien to show that he or she was, or is, residing here lawfully. Execution of a removal order, however, terminates an alien s residence in the United States. Sections 203(d), 207(c)(2)(A), and 208(b)(3)(A) permit the spouse or child of a principal alien to accompany or follow to join a principal alien. If any one beneficiary of a covered petition meets the residence requirements of section 204(l) of the Act, then the petition may be approved, despite the death of the qualifying relative, and all the beneficiaries may immigrate to the same extent that would have been permitted if the qualifying relative had not died. But it is not necessary for each beneficiary to meet the residence requirements in order to have the benefit of section 204(l). (2) Widow(er)s of Citizens. As stated in paragraph (b) of this chapter, section 204(l) does not apply to a Form I-130 filed by a now-deceased citizen on behalf of his or her spouse. Because of the automatic conversion of the Form I-130 to a Form I-360, there AILA InfoNet Doc. No (Posted 01/10/11)

23 PM : Subject New INA Section 204(l) Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update Page 6 is no longer any Form I-130 to which section 204(l) can apply. Please refer to Chapter 10.21(c)(5) concerning the effect of section 204(l) on the widow(er) s ability to seek a waiver of inadmissibility, after the death of the citizen spouse. (3) Action in Pending Petition Cases. Provided the alien was residing in the United States when the qualifying relative died, and still resides in the United States, an officer now has authority to approve any immigrant visa petition or refugee/asylee relative petition that was pending when the qualifying relative died if the petition is covered by section 204(l) of the Act, provided the petition was approvable when filed and still is approvable, apart from the death of the qualifying relative. Therefore, assuming all other requirements for approval of a petition are met, the death of the qualifying relative no longer requires denial of a petition in a case involving an alien who meets the requirements of new INA section 204(l). Section 568(d)(2) of Public Law specifies that new section 204(l) does not limit or waive any eligibility requirements or bars to approval of a petition or application other than the lack of a qualifying relative due to the qualifying relative s death. Thus, no other eligibility requirements are changed by the enactment of section 204(l). For example, a petition to which section 204(l) applies may still be subject to denial under section 204(c) of the Act (relating to prior marriage fraud) or any other statutory bar to approval. Note also that paragraph (c)(6) of this chapter provides guidance concerning the authority to deny a case under section 204(l) as a matter of discretion. An immigrant visa petitioner may withdraw a pending petition at any time before the admission or adjustment of the principal beneficiary. 8 C.F.R (b)(6). USCIS cannot adjudicate a petition that has been withdrawn. See Matter of Cintron, 16 I&N Dec. 9 (BIA 1976). Pursuant to section 204(l) of the Act, whether an employment-based petitioner is able to withdraw the petition and possibly affect the ability of principal beneficiary s alien widow(e) or children to immigrate on the employment-based visa, depends on when that petitioner is attempting to withdraw the petition. If the principal beneficiary is alive when the employer petitioner requests withdrawal of the petition, then USCIS will honor that request. On the other hand, if the withdrawal is dated after the death of the principal beneficiary, then USCIS will not give effect to the request for withdrawal since the employment-based petitioner no longer has any legal interest in the immigration of the principal beneficiary s widow(er) or children. The situation of a family-based petitioner is different. A family-based petitioner must generally assume the affidavit of support requirements for the principal beneficiary s spouse and children. Thus, unlike employment-based petitioners, the immigration of the derivatives does have an effect on the family-based petitioner. Under section 204(l) of the Act, the petitioner may certainly continue to seek approval of the petition, after the death of the principal beneficiary, if at least one derivative was residing in the United States when the principal died, and continues to do so. USCIS will presume that the AILA InfoNet Doc. No (Posted 01/10/11)

24 PM : Subject New INA Section 204(l) Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update Page 7 family-based petitioner wants the case to continue to adjudication. But USCIS does not interpret section 204(l) of the Act as requiring the petitioner to do so. The death of the principal beneficiary does not alter the family-based immigrant visa petitioner s right to withdraw a petition. If the petitioner chooses to withdraw the petition, USCIS will honor that decision, and refrain from adjudicating the petition. See Matter of Cintron. Section 204(l) of the Act requires that a T or U nonimmigrant surviving relative must have been admitted as a T or U nonimmigrant derivative at the time of death of the qualifying relative T or U nonimmigrant principal. Therefore, USCIS may not approve derivative status for a surviving relative whose qualifying relative died prior to approval of the derivative T application (I-914A) or derivative U petition (I-918A). However, USCIS officers should thoroughly review the case to determine whether the surviving relative may qualify as a principal T or U nonimmigrant. Also, if the surviving relative already had status as a T or U nonimmigrant derivative at the time of death of the qualifying relative, the surviving relative may apply for adjustment of status, as specified in paragraph (c)(4) of this chapter, notwithstanding the death of the principal, once the surviving relative has the requisite continuous physical presence in the U.S. If the principal dies prior to accrual of the requisite physical presence, the surviving relative may file a Form I-539 to apply for an extension of his or her T or U nonimmigrant status, notwithstanding the death of the principal, if necessary, until the surviving relative has accrued sufficient physical presence to apply for adjustment of status. (4) Action in Pending Adjustment Cases. (i) General. An officer also has authority, now, to approve an adjustment of status application that was pending when the qualifying relative died, if the related visa petition is approved under section 204(l), or if a pre-death approval is reinstated. In the adjustment of status context, the alien must have been eligible to apply for adjustment of status at the time that application was filed. See Chapter 10.21(c)(5) for the impact of section 204(l) on waiver and other related applications. Section 568(d)(2) of Public Law specifies that new section 204(l) does not limit or waive any eligibility requirements or bars to approval of a petition or application other than the lack of a qualifying relative due to the qualifying relative s death. Thus, no other adjustment eligibility requirements are changed by the enactment of section 204(l). For example, the death of the qualifying relative does not relieve the alien who is seeking adjustment under section 245(a) of the Act of the need to qualify for adjustment of status under section 245(a) of the Act. That is, unless the alien qualifies under section 245(i) of the Act, the alien must still establish a lawful inspection and admission or parole and is otherwise eligible for adjustment. An alien may not apply for adjustment before an immigrant visa is immediately available. Section 245(c) of the Act may make the alien ineligible, if section 245(i) or (k) of the Act does not apply to the AILA InfoNet Doc. No (Posted 01/10/11)

25 PM : Subject New INA Section 204(l) Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update Page 8 alien. However, if there was a properly filed adjustment application pending and the beneficiary or the derivative beneficiary was eligible to adjust, approval or reinstatement of approval of a visa petition under section 204(l) will preserve any eligibility for adjustment that existed immediately before the qualifying relative died. For example, if an immediate relative petition is approved or a pre-death approval is reinstated under section 204(l) of the Act, the beneficiary remains eligible for the immediate relative exemptions in section 245(c), assuming the beneficiary is not barred from adjustment under sections 245(d) or 245(f) of the Act. The death of a principal refugee has not, historically, affected the eligibility of a derivative refugee for adjustment under section 209(a) of the Act. See Memorandum from William R. Yates to Field Offices, Procedural Guidance on Admission and Adjustment of Status for Refugees at p. 9 (May 15, 2000). Thus, while section 204(l) may benefit the beneficiary of a Form I-730, if the principal dies before the derivative is admitted, reliance on section 204(l) is not necessary for a derivative who has already been admitted. By contrast, section 204(l) can benefit an alien who seeks adjustment based on a derivative asylum grant, under section 209 of the Act, as a derivative T nonimmigrant under section 245(l) of the Act, or as a derivative U nonimmigrant under section 245(m) of the Act. Any one of these aliens may still be eligible for adjustment, in light of section 204(l) of the Act, despite the death of a qualifying relative. But the alien must still establish that he or she is eligible for adjustment, apart from the qualifying relative s death, under the governing statute. 1 Similarly, the applicant must be admissible, or must obtain any available waiver of inadmissibility. Section 204(l) of the Act, by its terms, does not automatically waive any ground of inadmissibility that may apply to an adjustment applicant. See Public Law , 568(d)(2). Thus, an adjustment applicant whose case is governed by section 204(l) of the Act may need to apply for a waiver or other relief from inadmissibility. See paragraph (c)(5) of this chapter concerning the effect of section 204(l) of the Act on applications for waivers or other relief from inadmissibility. Because section 204(l) of the Act does not waive the standard eligibility requirements for applying for adjustment, an alien who did not already have an adjustment application pending when the qualifying relative died may not be able to seek adjustment in every case in which a pending petition was approved, or an approved petition was reinstated, under section 204(l) of the Act. An alien whose petition has been approved or reinstated under new section 204(l) of the Act, but who is not eligible to adjust status, would not be precluded from applying for an immigrant visa 1 In the past, USCIS has been willing to grant asylum as a principal to a derivative asylee who no longer qualified as a derivative. This action would preserve the derivative s ability to adjust even if the derivative was no longer the spouse or child of a principal. Section 204(l) of the Act makes this step unnecessary, if the reason for the loss of derivative status is the death of the principal. AILA InfoNet Doc. No (Posted 01/10/11)

26 PM : Subject New INA Section 204(l) Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update Page 9 at a consular post abroad. 2 The approval of a visa petition under section 204(l) of the Act does not give an alien who is not eligible for adjustment of status, and who is not in some other lawful immigration status, a right to remain in the United States while awaiting the availability of an immigrant visa. The death of the qualifying relative also does not relieve the alien of the need to have a valid and enforceable Form I-864, Affidavit of Support, if required by sections 212(a)(4)(C) and 213A of the Act and 8 C.F.R. 213a.2. If the alien is required to have a Form I-864, and the visa petition is approved under section 204(l), a substitute sponsor will need to submit a Form I-864. Pub. L , 568(e), 123 Stat. at A substitute sponsor is needed even if the deceased petitioner had filed a Form I-864. A Form I-864 is not a petition nor is it an application or related application. The Form I-864 is a contract between the sponsor and the Government, submitted as evidence in support of a visa or adjustment application. DHS regulations clearly provide, moreover, that a sponsor s obligations under a Form I-864 do not take force until the alien actually immigrates. 8 C.F.R. 213a.2(e)(1). It is the grant of LPR status that is the Government s acceptance of the sponsor s offer to be bound by the Form I-864. The sponsor s obligations terminate with the sponsor s death. 8 C.F.R. 213a.2(e)(2)(ii). Also, the affidavit of support has an important role, beyond establishing that the sponsored alien is not inadmissible on public charge grounds. The sponsor s income may be deemed to the sponsored alien in determining the sponsored alien s eligibility for means-tested public benefits. 8 U.S.C and The sponsor is also responsible for reimbursing an agency for the costs of any means-tested public benefit provided to the sponsored alien. Section 213A(b) of the Act. Accepting as still valid a Form I-864 from someone whom USCIS knows to be dead would work against each of these vital aspects of the affidavit of support requirement. Thus, there is no longer a valid and enforceable Form I-864 if the sponsor dies while the petition, visa application, or adjustment application is pending. 3 (ii) Adjustment not subject to conditions under section 216 of the Act. An alien who acquires LPR status based on a marriage entered into less than 24 months before the alien acquires LPR status obtains LPR status on a conditional basis under section 2 The alien must have been continuing to reside in the United States in order for the petition to have been approved. Once it has been approved, however, the alien s departure to obtain a visa would not change the fact that the alien met the residence requirements when the officer adjudicated the petition. 3 A substitute sponsor s Form I-864 is not needed if the alien is not required to have a Form I-864 at all. For example, an alien may already have, or be entitled to be credited with, sufficient quarters of coverage under the Social Security Act to be exempt from the Form I-864 requirement. See 8 C.F.R. 213a.2(a)(2)(ii)(C). Also, as with any Form I-864, the substitute sponsor may rely on the financial resources of the sponsored alien to meet the Form I-864 requirements. See id. 213a.1 (including sponsored alien s lawful income in the United States in household income ) and 213a.2(a)(iii)(B) (including sponsored alien s assets). AILA InfoNet Doc. No (Posted 01/10/11)

27 PM : Subject New INA Section 204(l) Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update Page of the Act. Generally, the alien must then petition, two years later, for removal of the conditions. If the qualifying marriage has already ended by death, however, a condition for removal of the conditions already exists. For this reason, if a Form I-130 and Form I-485 are approved under section 204(l) of the Act, the alien s LPR status will not be subject to the conditions under section 216 of the Act. The alien, therefore, will not need to file Form I-751. (iii) Removal of conditions under section 216A of the Act. An alien who acquires LPR status based on a qualifying investment under section 203(b)(5) of the Act does so on a conditional basis under section 216A of the Act. If the derivative beneficiary of a Form I-526 obtains approval of the Form I-526 and Form I-485 under section 204(l) of the Act, the alien remains subject to the conditions imposed by section 216A of the Act. Unlike the death of a petitioning spouse under section 216 of the Act, the death of the Form I-526 petitioner does not, by itself, provide a basis for removing the section 216A conditions. Rather, under 8 C.F.R (a)(6), the derivative beneficiaries must still file, two years later, a Form I-829 and show that the requirements for removal of the conditions have been met. (5) Waivers and Other Related Applications. The text of new section 204(l) provides that the new approval authority applies not only to the visa petition, but to an adjustment application and any related applications. Section 568(d)(2) of the FY2010 DHS Appropriations Act specifies that section 568(d)(1) does not waive grounds of inadmissibility. But the provision does remove ineligibility based solely on the lack of a qualifying family relationship as a basis for denying relief. USCIS has determined, therefore, that section 204(l) does give USCIS the discretion to grant a waiver or other form of relief from inadmissibility to an alien described in section 204(l), even if the qualifying relationship that would have supported the waiver has ended through death. Note that it is not necessary for the waiver or other relief application to have been pending when the qualifying relative died. Section 204(l) of the Act permits the approval of a waiver or other relief application despite the death of a qualifying relative if: a petition or application specified in paragraph (c)(1) of this chapter was pending or approved when the qualifying relative died; the alien was residing in the United States when the qualifying relative died;; and the alien still resides in the United States. If a pending petition or application to which section 204(l) applies is denied, despite section 204(l) of the Act, then the alien may not obtain approval of a waiver or other relief under section 204(l). Some waivers require a showing of extreme hardship to a qualifying relative, who must be either a citizen or a permanent resident. Since the legislation intends to have AILA InfoNet Doc. No (Posted 01/10/11)

28 PM : Subject New INA Section 204(l) Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update Page 11 the new section 204(l) of the Act extend not only to the approval of the pending petition, but also to any related applications, the fact that the qualifying relative has died will be noted in the decision and deemed to be the functional equivalent of a finding of extreme hardship. Note that 204(l) applies in this context only when, the hardship being claimed by the surviving beneficiary, would have been on account of claimed extreme hardship that would have been suffered by the qualifying relative were he or she still alive. Additionally, it should be noted that the finding of extreme hardship merely permits, and never compels a favorable exercise of discretion. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996). That is, as with any other waiver case, a waiver application decided in light of section 204(l) requires the weighing of all favorable factors against any adverse discretionary factors. Extreme hardship is just one positive factor to be weighed. See id. The inadmissibility ground sought to be waived is, itself, an adverse factor. See INS v. Yang, 519 U.S. 26 (1996). For example, inadmissibility based on a conviction for a violent or dangerous crime requires proof of exceptional or extremely unusual hardship, or some other extraordinary circumstance, in order for a waiver application to be approved. 8 C.F.R (d). The preceding paragraph assumes that the qualifying relative was already a citizen or permanent resident at the time of death. If the qualifying relative was not already a citizen or permanent resident, then the qualifying relative s death does not make the alien eligible for a waiver that would not have been available if the qualifying relative had not died. If the qualifying relative was not a citizen or permanent resident, then the alien may not be able to obtain a waiver of inadmissibility unless there is yet another individual who has the requisite status and family relationship to meet the requirements of the waiver provision, or the waiver provision does not require a family relationship and/or extreme hardship. As noted in Chapter 10.21(c)(2), section 204(l) does not apply to Form I-130 that was filed by a now-deceased citizen for his or her spouse, who is now the widow(er) of a citizen. Once the citizen has died, the widow(er) becomes the visa petitioner. USCIS has determined, however, that if the widow(er) was the beneficiary of a pending or approved Form I-130 when the original petitioner died, and the widow(er) meets the residence requirements in section 204(l), then section 204(l) preserves the widow(er) s ability to have a waiver application approved as if the now deceased citizen had not died. As with any other waiver application that is covered by section 204(l), the fact that the citizen petitioner has died will be noted in the decision and deemed to be the functional equivalent of a finding of extreme hardship. But the finding of extreme hardship merely permits, and never compels a favorable exercise of discretion. See Matter of Mendez-Moralez, supra. The widow(er) must still establish that he or she merits a favorable exercise of discretion. (6) Discretionary Denial under Section 204(l). Section 204(l) gives USCIS discretion to deny a petition or application that may now be approved despite the qualifying AILA InfoNet Doc. No (Posted 01/10/11)

29 PM : Subject New INA Section 204(l) Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update Page 12 relative s death, if USCIS finds, as a matter of discretion, that approval would not be in the public interest. Section 204(l)(1) of the Act, 123 Stat. at This exercise of discretion, moreover, is unreviewable. Id. USCIS officers will not, routinely, use this discretionary authority to deny a visa petition that may now be approved, despite the death of the qualifying relative. In a visa petition proceeding that is not subject to section 204(c) of the Act or some other approval bar, the overriding issue is simply whether the beneficiary qualifies for the visa classification sought. Inadmissibility, for example, does not warrant denial of a visa petition. See Matter of O-, 8 I&N Dec. 295 (BIA 1959). Section 204(l) now provides that an alien described in section 204(l) can still qualify for the benefit sought, despite the qualifying relative s death. Thus, only truly compelling discretionary factors should be cited as a basis to deny a visa petition under section 204(l), on the ground that approval would not be in the public interest. Section 204(l)(1) of the Act, 123 Stat. at Before denying a visa petition on this basis, the USCIS officer must consult with the appropriate Headquarters Directorate, through appropriate channels. This consultation requirement also applies to all cases, other than visa petition cases, that may now be approved under section 204(l) despite the qualifying relative s death. The USCIS officer must consult the appropriate Headquarters Directorate before denying a case on the ground that approval would not be in the public interest. Section 204(l)(1) of the Act, 123 Stat. at Consultation is not required if the USCIS officer will deny the case based solely on the traditional discretionary factors that would have applied to the particular type of case, even if the qualifying relative were still alive. For example, unwaived or unwaivable fraud or criminal inadmissibility, or security grounds, may warrant denial as a matter of discretion under ordinary circumstances, and consultation is not required in such a case. Rather, consultation is required only if the USCIS officer intends to deny the case as a matter of discretion on the not... in the public interest ground. (7) Humanitarian Reinstatement. Under DHS regulations at 8 C.F.R (a)(3)(i)(C), approved immediate-relative and family-based petitions filed under section 204 are automatically revoked upon the death of the petitioner or the beneficiary. Since approval under section 204(l) is a matter of agency discretion, enactment of section 204(l) does not supersede this long-standing regulation. But 8 C.F.R (a)(3)(iii)(C)(2) also gives USCIS discretion to decide not to revoke the approval for humanitarian reasons. In light of section 204(l), it would generally be appropriate to reinstate the approval of an immediate-relative or family-based petition if the alien was residing in the United States when the petitioner dies and if the alien continues to reside in the United States. In those circumstances, reinstating the approval of an immediate-relative or family-based petition is appropriate even if the death that resulted in the automatic revocation occurred before October 28, AILA InfoNet Doc. No (Posted 01/10/11)

30 PM : Subject New INA Section 204(l) Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update Page 13 The fact that USCIS already denied reinstatement before October 28, 2009, does not preclude a new request. Under DHS regulations at 8 C.F.R (a)(3)(iii)(B), approved employmentbased petitions filed under INA section 203(b) are automatically revoked upon the death of the petitioner or the beneficiary. There is no comparable regulatory provision that allows for the reinstatement of the approval of employment-based petitions based upon humanitarian reasons. Similarly, the DHS regulation at 8 C.F.R (a)(3)(iii)(C)(2) does not provide for reinstatement of approval of an immediate-relative or family-based visa petition if it is the principal beneficiary, rather than the petitioner, who has died. In light of section 204(l), however, USCIS officers may act favorably on requests to reinstate approvals under section 205 of the Act and 8 C.F.R. part 205. See Chapter 21.2(h)(1)(C) of this AFM for further guidance on reinstating approval of visa petitions. Chapter 21.2(h)(1)(C) specifies the information that the beneficiary should submit with the written request for reinstatement and also specifies that the written request should be submitted to the USCIS service center or field office that approved the petition except that, if the beneficiary has properly filed an application for adjustment of status with USCIS, the request should be submitted to the USCIS office with jurisdiction over the adjustment application. USCIS may still deny a request to reinstate approval as a matter of discretion. As stated in chapter 10.21(c)(6) of the AFM, however, the USCIS officer must consult the appropriate Headquarters Directorate through appropriate channels, if the USCIS officer intends to deny reinstatement solely based on a finding under section 204(l) that granting it would not be in the public interest. (8) Application of New Section 204(l) to Cases Adjudicated before October 28, (i) Denials. New section 204(l) does not, by its terms, require USCIS to reopen or reconsider any decision denying a petition or application, if the denial had already become final before October 28, For this reason, enactment of new section 204(l) is not a reason for USCIS to reopen or reconsider, on its own motion, any decision that was made before October 28, Given the intent of section 204(l), USCIS has decided to allow an alien to file an untimely motion to reopen a petition, adjustment application, or waiver application that was denied before October 28, 2009 if new section 204(l) would now allow approval of a still-pending petition or application. A motion to reopen, rather than a motion to reconsider, would be the proper type of motion, since the alien would need to present new evidence: proof of the relative s death and proof both that the alien was residing in the United States when the relative died and that the alien continues to reside in the United States. The alien must pay the standard filing fee for each motion, unless the alien qualifies for a fee waiver under 8 AILA InfoNet Doc. No (Posted 01/10/11)

31 PM : Subject New INA Section 204(l) Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update Page 14 C.F.R (c)(5). If the alien establishes that he or she was residing in the United States when the qualifying relative died, and that he or she continues to reside in the United States, it would be appropriate for USCIS to exercise favorably the discretion to reopen the petition and/or application(s), and to make new decisions in light of new section 204(l). Note that an alien who is present in the United States unlawfully does not accrue unlawful presence while a properly filed adjustment application is pending. AFM chapter (b)(3)(A). If USCIS grants, under section 204(l) of the Act, a motion to reopen a Form I-485 that was denied, the Form I-485 will, once again, be pending, and is deemed to be pending from the original date of filing. Thus, reopening a Form I-485 under section 204(l) of the Act will cure any unlawful presence that may have accrued between the original denial and the new decision. The result is that the alien will not have accrued any unlawful presence from the original filing of the Form I-485 until there is a final decision after the reopening of the Form I-485. If the alien is otherwise inadmissible because of unlawful presence accrued before applying for adjustment, a waiver may be available, as discussed in paragraph (c)(5) of this chapter. (ii) Approvals. A USCIS officer may encounter a case in which a petition or application was approved, before October 28, 2009, despite the death of a qualifying relative. The approval may have occurred because USCIS was unaware of the death, or because the alien persuaded USCIS that the death did not end eligibility. Although some courts of appeals had held that the death of a citizen did not end the eligibility of the citizen s spouse for classification as an immediate relative, there was no nationwide ruling on this issue. Nor was there any binding precedent concerning relatives other than widow(er)s of citizens. The spousal immediate relative cases, however, could be seen as at least persuasive authority that USCIS could approve other types of visa petitions, despite the petitioner s death. Given the intent of section 204(l), USCIS will deem the approval of the petition and the grant of adjustment proper, and will not seek to rescind a grant of adjustment, if the sole basis for doing so is the death of the qualifying relative or the resulting invalidity of the Form I-864 filed by the visa petitioner. 2. Chapter 21.2(h)(1)(C) of the AFM is amended by: a. Revising the first and second sentences in the third paragraph; and b. Removing the final paragraph and replacing it with 2 additional paragraphs at the end. The revisions read as follows: 21.2 Factors Common to the Adjudication of All Relative Petitions * * * * * AILA InfoNet Doc. No (Posted 01/10/11)

32 PM : Subject New INA Section 204(l) Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update Page 15 (h) Revocation of Approval. * * * (1) Automatic Revocation. * * * * * * * * * * * * * (C) Discretionary Authority to Not Automatically Revoke Approval. To request humanitarian reinstatement of a revoked petition, the beneficiary should send a written request for reinstatement to the USCIS service center or field office that approved the petition except that, if the beneficiary has properly filed an application for adjustment of status with USCIS, the written request should be submitted to the USCIS office with jurisdiction over the adjustment application. The written request must include a copy of the approval notice for the revoked petition, the death certificate of the petitioner (or other qualifying relative) and, if required by section 213A of the Act and 8 CFR part 213a, a Form I-864 from a substitute sponsor and proof of the substitute sponsor s relationship to the beneficiary. * * * While there are no other rules or precedents on how to apply this discretionary authority, reinstatement may be appropriate when revocation is not consistent with the furtherance of justice, especially in light of the goal of family unity that is the underlying premise of our nation s immigration system. In particular, reinstatement is generally appropriate as a matter of discretion, if section 204(l) of the Act and Chapter of this AFM would support approval of the petition if it were still pending. For cases that are not covered by section 204(l) of the Act, the reinstatement request will be addressed in light of the factors that USCIS has traditionally considered in acting on reinstatement requests, which include: The impact of revocation on the family unit in the United States, especially on U.S. citizen or LPR relatives or other relatives living lawfully in the United States; The beneficiary s advanced age or poor health; The beneficiary s having resided in the United States lawfully for a lengthy period; The beneficiary s ties to his or her home country; and Significant delay in processing the case after approval of the petition and after a visa number has become available, if the delay is reasonably attributable to the Government, rather than the alien. Although family ties in the United States are a major consideration, there is no strict requirement for the alien beneficiary to show extreme hardship to the alien, or to AILA InfoNet Doc. No (Posted 01/10/11)

33 PM : Subject New INA Section 204(l) Approval of Petitions and Applications after the Death of the Qualifying Relative AFM Update Page 16 relatives already living lawfully in the United States, in order for the approval to be reinstated. If the alien is required to have a Form I-864 affidavit of support, however, there must be a Form I-864 from a substitute sponsor. 8 C.F.R (a)(3)(i)(C). 3. The AFM Transmittal Memorandum button is revised by adding a new entry, in numerical order, to read: PM AFM Update [12/16/2010] Chapter and 21.2(h)(1)(c) This memorandum adds new Chapter and revises Chapter 21.2(h)(1)(c) to reflect enactment of INA section 204(l), allowing some petitions and applications to be approved despite the death of the qualifying relative. Use This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. Contact Information Questions regarding this memorandum should be directed to the Field Operations Directorate or the Service Center Operations Directorate, through appropriate channels. For cases adjudicated overseas, questions should be directed to the International Operations Division, Programs Branch. AILA InfoNet Doc. No (Posted 01/10/11)

34 U.S. Citizenship and Immigration Services Office of Public Engagement Washington, DC Agenda I. Welcome and Introductions II. III. IV. Office of Intake and Document Production Receipt Issuance Fee Waiver Statistics Customer Service Directorate Online Case Status System Undeliverable Mail Office of Performance and Quality Processing Times Web Page Updates V. Office of Citizenship Citizenship Test VI. VII. VIII. IX. Office of Transformation Coordination I-130 Automatization Office of Policy & Strategy Child Status Protection Act Office of Public Engagement SSI Benefits Field Operations Directorate Lost Record of G-28 on File N-600s for Individuals Residing Abroad N-648 Expiration X. Service Center Operations Directorate Recognition of ECFMG Certification VIBE Requests for Evidence I-539 H4 Cases H-1B Cap Exemption I-797 Notices for J-1 Waivers I-485 TRIG/Material Support Cases XI. Open Forum AILA InfoNet Doc. No (Posted 06/29/11)

35 U.S. Citizenship and Immigration Services Office of Public Engagement Washington, DC June 29, 2011 Questions & Answers USCIS Quarterly National Stakeholder Engagement Office of Intake and Document Production Question: Receipt Issuance Please address the delay in issuance of I-539 and I-130/485 receipts. In each instance, it is our experience, it takes 4+ weeks to receive a receipt. Response: We are not aware of a delay in issuance of the I-539 receipts and would appreciate any examples that you could provide for further review. The delay in I-130/I-485's was due to an unexpected amount of cases falling into the case resolution queues, for review, as we transitioned our workload onto a new processing platform. This impacted our processing times and four weeks was the extreme. We have performed in depth analysis, identified and implemented some changes to reduce the number of cases that need to be reviewed by USCIS staff. Filling out the applications/petitions correctly with correct fees and signatures. Please refer to for filing tips which are located on each form page. In addition, we have a designated address for these types of customer inquiries; lockboxsupport@dhs.gov. Question: Fee Waiver Statistics Please provide a month-by-month breakdown of fee waiver applications, approvals, and denials for each type of application, for March, April, and May AILA InfoNet Doc. No (Posted 06/29/11)

36 Response: FY 2011 Fee Waivers Form Type Received Approved EOIR % % Approved I % I % I % I % I % I-192 8,061 8, % I % I % I-290B % I-290C % I % I ,353 17,858 88% I % I % I % I % I % I ,593 19,403 90% I-765 TPS % I % I % I-821 TPS % I % I-90 9,134 6,536 72% I % Motions % N % N ,714 23,166 84% N-565 1, % N-600 1,762 1,567 89% Total Waivers 102,782 87,331 85% Customer Service Directorate Question: Online Case Status System a) Receipt Numbers AILA InfoNet Doc. No (Posted 06/29/11)

37 Why do some "Receipt Numbers" never get into the case status systems? For example receipt numbers beginning with SIM? We have also found this to be an issue with MSC receipts. Response: Case Status Online provides users with secure, self-service access, via the web, to Claims 3 and Claims 4 USCIS systems status information. The USCIS Service Centers which process the customer applications and petitions within Claims 3 (C3) and Claims 4 (C4) feed status updates to the CRIS Case Status application each night. Currently the CRIS system interface is only with the C3 and C4 systems; hence the system only accepts Service Center receipt numbers. b) Frequency of Updates How often is the case status system updated? We have found that sometimes the case status system is never updated (ie-i-131 approved April 26 as of May 11 the case status system still says "we received the I-131" when in reality we already have the re-entry permit) Response: Information is fed nightly from the USCIS Case Management Systems, Claims 3 (C3) and Claims 4 (C4). Any case which has been changed from one History Action Code (HAC) to another will be updated in the CRIS database. The HACs provide important information to the customer such as receipt date, location, current status and further instructions. However not all HACs are displayed within the Case Status Online application. Each action code has the ability to have the display turned on or off for Case Status Online. This decision is driven mostly by the availability of information to CRIS from the requestors for CLAIMS 3 and CLAIMS 4. A few are not displayed because the action code tracks internal movement that does not add value to information we are providing the customer. Question: Undeliverable Mail Can an Officer at the Customer Service Center determine the contents of a document that was returned to the Service as undeliverable? Response: The ISOs at the Tier 2 Call Centers have been provided with access to the (Secure Mail Initiative); which allows the electronic submittal and tracking of mail to its destination. Once a valid receipt number is entered into SMI, the corresponding USPS tracking number, as well as the delivery status will appear. The ISOs at Tier 2 also have access to all USCIS systems and contacts in the field to verify the type of document(s) that were mailed. Office of Performance and Quality Question: Processing Times - Webpage Updates How often is the processing time web-page updated? How accurate are processing times dates/time frames listed on processing time web-page? Response: Processing times are updated and posted monthly to the web on or about the 15 th day of each month. The processing times are calculated from final statistics compiled 45 days prior to their posting and are based on the number of applications pending and applications received within each field office and service center. The processing times derived under this model are the result of mathematical computations and are not based on the specific age of each case. USCIS AILA InfoNet Doc. No (Posted 06/29/11)

38 does not possess the capability under its current paper-based processing model to manage and track adjudication processing based upon each unique applicant. Therefore, it is important to note that the processing time information is the average time that a case pending within a certain USCIS office is taking to be processed. Because the processing time figures are an average calculation, it is possible that there are individual cases that have been pending within the USCIS inventory for longer than the stated processing time indicates. Based upon the current methodology for calculating processing times, USCIS requires 30 days to collect and conduct quality reviews on the performance data received from its field offices and service centers to ensure that the final data used to calculate the processing time information is accurate and reliable. Another 15 days is needed to calculate the processing times, receive field office and service center concurrence, and upload to the USCIS website. Although the processing time information has become aged by the time it is posted to the USCIS website, it generally remains accurate since processing times don t normally change that much from month to month. Office of Citizenship Question: Citizenship Test Please provide an update on USCIS efforts to conduct a records study to determine pass-fail rates on the revised citizenship test and look at its impact on different demographic groups, as compared to the previous version of the test. Please share any results or findings that are already available. Response: USCIS contracted with ICF International to perform a record study to determine the pass rate for the redesigned naturalization test. In addition to this record study data collection, USCIS will have comparative data - comparing the current test with the previous test in late summer USCIS will disseminate key findings in the fall. In the meantime, USCIS continues to review and make publicly available data on applicant performance on the current test, which is available here: d=6c40ec90d vgnvcm ca60arcrd&vgnextchannel=6c40ec90d vgn VCM ca60aRCRD Office of Transformation Coordination Question: I-130 Automatization Suggestions: 1.- Documents should be able to be uploaded along with application. 2.- Repeated information from the I-130 should automatically flow to g-325a. Response: Generally, USCIS ELIS, the online case management system, will require an applicant to scan and upload supporting documentation when he or she submits an electronic application. Similarly, in the event additional information or documentation is required after the electronic application and supporting document has been filed, USCIS will issue an electronic Request For Evidence (RFE) that will require documents to be scanned and uploaded in USCIS ELIS. Form I-130 will enter the USCIS ELIS online case management system in a subsequent release. Certain information may be pre-populated into Form I-130 from prior benefit requests or from supporting forms AILA InfoNet Doc. No (Posted 06/29/11)

39 Office of Policy & Strategy Question: Child Status Protection Act (CSPA) a) INA 204(l) allows a beneficiary to proceed with the adjudication of a petition or application after the petitioner has died, assuming all eligibility requirements are satisfied. How does this law intersect with the Child Status Protection Act? For example, would a child who is eligible for 204(l) relief in the following circumstances still be able to claim protection under the CSPA? Petition was filed by US citizen parent on behalf of unmarried child under 21 in Petitioner died in 2001 while petition was pending. Beneficiary is still unmarried but is over 21. Can the child still claim immediate relative status when applying for 204(l) relief? Response: Nothing in section 204(l) changes the way the CSPA applies to a given case. Given a scenario where the petitioner for an immediate relative child beneficiary was denied due to the death of the petitioner prior to enactment of 204(l), the beneficiary may file an untimely motion (with proper fee) based upon the provisions of 204(l). Assuming the child meets the requirements of 204(l) and such motion and the underlying petition are granted, the beneficiary would remain eligible for classification as an immediate relative child pursuant to CSPA, assuming he or she remains unmarried to the same extent as the beneficiary would be had the petitioner not died. Petition was filed by LPR parent on behalf of unmarried child under 21 in Priority date for F-2A became current and beneficiary filed for adjustment of status in Petitioner died while application was pending. Applicant is now over 21 and has filed a motion to reopen the revoked petition, pursuant to the December 2010 USCIS memo. Can the child still claim the F- 2A category? Response: Again, nothing in section 204(l) changes the way the CSPA applies to a case. Given this scenario, USCIS will first determine whether the beneficiary remained eligible for F2A classification at the time the adjustment was filed pursuant to CSPA. To wit, whether the beneficiary had a CSPA age under 21 and sought to acquire LPR status within one year of visa availability. If so, then, assuming the beneficiary meets the eligibility criteria for 204(l) and remains unmarried, the applicant may remain eligible for adjustment in the F2A classification. Petition was filed by US citizen parent on behalf of married son in Married son has derivative child. Petition was approved. Priority date became current in 2008 and principal beneficiary filed for adjustment of status. Derivative son was still under 21 using CSPA formula. Principal beneficiary died in 2008 while application was pending. Derivative child is still unmarried but is now over 21 using CSPA. Derivative child can now take advantage of 204(l) relief. Can child still be considered a derivative and what is the impact of CSPA s oneyear filing requirement? Response: Again, nothing in section 204(l) changes the way the CSPA applies to a case. Eligibility for CSPA in this type of scenario involves consideration of many variables. Given the fact pattern presented, whether the derivative sought to acquire LPR status within one year of visa availability is contingent upon when the principal beneficiary passed away with respect to when a visa became available. In the scenario provided above, the visa [first] became available in 2008 and the beneficiary died in 2008, indicating that the derivative did not have a full year of visa availability at the time the principal beneficiary died. Section 204(l) provides, simply, that the alien s eligibility is to be determined as if the qualifying relative had not died. So the alien s effective age, for CSPA purposes, will still be determined by subtracting the number of days between the filing and initial approval of the visa petition from the alien s age at the time the visa number first became available AILA InfoNet Doc. No (Posted 06/29/11)

40 As such, if the derivative in this scenario had filed an application for adjustment prior to the principal beneficiary s death, and the adjustment was denied as a result of the death, and the derivative may file an untimely motion based upon 204(l) and proceed with derivative adjustment as a child based on a CSPA age under 21 that was locked in by having sought to acquire within one year. If, however, the derivative had not sought to acquire, the derivative would need to seek humanitarian reinstatement of the original petition. To ensure that the alien has the full year to seek adjustment, USCIS will consider the alien to have met the one-year filing deadline if the alien applies for adjustment or a visa within one year from the date USCIS reinstates the approval. If the priority date has regressed, however, the alien s CSPA age will be recalculated again based on the date the priority date is reached again, just as would have been the case if the qualifying relative had not died. Also, if the one year period had already lapsed before the principal beneficiary died, reinstating the approval of the petition under section 204(l) does not give the derivative beneficiary a new one year period. b) When section 204(l) does not apply, because the petitioner died after approval of the petition and before any application was filed, the petition may be reinstated based on humanitarian grounds. Does the CSPA apply in those cases? Petition was filed by LPR parent on behalf of unmarried child under 21 in Petitioner died in 2005 after petition was approved. Priority date for F-2A became current in 2008 while beneficiary was still under 21. Petitioner filed for humanitarian reinstatement later in early Motion/request was approved last month. Beneficiary/applicant is now over 21. Can he still claim the F-2A category? What about the one-year filing requirement? Petition was filed by US citizen on behalf of married sibling in Married sibling has derivative child. Petition was approved. Principal beneficiary died in Priority date became current in 2007 while derivative child was under 21, but the law at the time did not allow for the filing of a motion to reinstate. Law enacted on October 28, 2009 and derivative beneficiary filed to reinstate revoked petition. At the time, derivative was over 21 using biological age but under 21 using CSPA age. Motion/request is approved last month. Does CSPA apply and what is effect of one-year filing requirement? Same facts only child was over 21 when priority date became current in 2007 but under 21 using CSPA. Child is over 21 using CSPA when filed to reinstate petition and motion is still pending. Response: Again, section 204(l) does not change CSPA. CSPA was enacted for the purpose of protecting children from aging out because of administrative delays in adjudicating visa petitions. It is well established that CSPA does not protect children from aging out on account of other issues, such as lengthy waits for visa availability, and in preference cases requires the child to seek to acquire lawful permanent residence within one year of visa availability. As such, USCIS does not find that the effects of 204(l), enacted more than 7 years later, supersede the intended purpose of CSPA. Rather, 204(l) provides, simply, that the alien s eligibility is to be determined as if the qualifying relative had not died. So the alien s effective age, for CSPA purposes, will still be determined by subtracting the number of days between the filing and initial approval of the visa petition from the alien s age at the time the visa number first became available. If, using this calculation, the alien s CSPA age is under 21, the reinstatement of a visa petition approval will be treated as the start of the one-year application window under section 203(h)(1)(A). Thus, an alien will not lose CSPA eligibility solely because of the qualifying relative s death. But if the alien s CSPA age, under the standard statutory calculation, was already over 21, then of course the alien s case will be governed by section 203(h)(3) and Matter of Wang, 25 I&N Dec. 28 (BIA 2009) AILA InfoNet Doc. No (Posted 06/29/11)

41 c) Can a child over 21 (but under 21 using CSPA and still in the F-2A category) opt out of automatic conversion to the F-1 category when the LPR petitioner naturalizes? The statute appears to provide this opt-out relief only for children in the F-2B category. Response: Yes. When a direct beneficiary who is initially in the F2A classification turns 21 and the LPR petitioner subsequently naturalizes, the order of operations is treated as follows: (a) upon turning 21, the child automatically converts to the F2B; (2) upon petitioner s naturalization, the F2B automatically converts to the F1 classification; (3) the beneficiary may make a written request to USCIS to opt-out of the conversion to F1 and remain in the F2B classification; (4) the CSPA age calculation may be applied to determine if the beneficiary has a CSPA age under 21. d) Does the Service intend to modify its narrow interpretation of CSPA s one-year requirement after the three unpublished BIA decisions interpreted the requirement as seeking LPR status and not filing for LPR status? Response: No. USCIS maintains that seeking to acquire lawful permanent residence is accomplished through one of the following methods: (a) filing Form I-485, Application to Register Permanent Residence or Adjust Status; (b) submitting Form DS-230 to begin consular processing for an immigrant visa petition abroad or (c) by being the beneficiary of Form I-824, Application for Action on an Approved Application or Petition. Permanent resident status can only be obtained through a grant of adjustment of adjustment of status or admission as a LPR by DHS (the latter based upon DOS s issuance of an immigrant visa), therefore any action taken to prepare for or consider obtaining LPR status outside of these processes does not constitute seeking since the result can only be obtained by virtue of filing an application with USCIS or submitting an application with DOS. e) If a beneficiary filed/moved for humanitarian reinstatement and it is denied, can he or she re-file with more supporting documentation? The 30-day period within which to file a motion to re-open or reconsider has already passed. Response: A denied beneficiary is give one bite of the apple for each possible administrative recourse to an unfavorable decision. However, if the humanitarian reinstatement request was denied prior to enactment of 204(l), the beneficiary may file a new request for humanitarian reinstatement in light of the additional ameliorative considerations given in light of this legislation. f) When does the Service anticipate publishing regulations governing the CSPA? Section 204(l)? Response: They are currently being developed. Giving the standard process for developing and reviewing regulations, USCIS cannot predict a date for publishing the NPRM. Office of Public Engagement Question: SSI Benefits Please provide an update on the inter-agency efforts to identify elderly and disabled refugees who are being cut-off of their SSI benefits and what is being done to target/serve this population to ensure that they naturalize within the 7 year time limit AILA InfoNet Doc. No (Posted 06/29/11)

42 Response: USCIS hosted several meetings and teleconferences with relevant federal government partner agencies, including the Social Security Administration (SSA), the Health and Human Services Administration on Aging and Office of Refugee Resettlement (ORR), the Office of Management and Budget (OMB), the White House, Community Based Organizations (CBOs) and advocacy groups. The focus of the meetings was brain storming ideas for expanding outreach to refugees and certain noncitizens regarding the expiration of SSI benefits for those persons who are only eligible to receive SSI benefits for up to seven years unless they become U.S. citizens. The meetings gave USCIS the opportunity to discuss the issues as well as assess the resources of each agency for supporting outreach efforts. USCIS also conducted a national engagement on April 21, 2011 which included CBOs, advocacy groups, State Refugee Coordinators, area agencies on Aging, Congressional Staff, English as a Second Language (ESL) teachers, representatives of SSA local offices, and other state and local government stakeholders. This interagency collaboration and work with community partners allowed USCIS to educate stakeholders and respond to their questions about the expiration of SSI benefits, as well as discuss the available resources each agency has to support outreach efforts. USCIS consistently uses its Community Relations Officers (CROs) to disseminate information about this issue to their respective stakeholders and community based organizations and encourage stakeholders to use USCIS s citizenship resources. The Citizenship Public Education and Awareness Initiative promotes awareness of the rights, responsibilities, and importance of United States citizenship, and the free naturalization preparation resources available to permanent residents and immigrant-serving organizations. This awareness and education campaign is very important in raising awareness about the citizenship process so that refugees and noncitizens can start the process of applying for citizenship as early as possible. For USCIS citizenship resources, please see below. The new Citizenship Resource Center is a centralized resource for citizenship preparation and education, with a variety of free resources for learners, teachers, and organizations. A free copy of the Civics and Citizenship Toolkit is available at All Office of Citizenship educational materials can be found on the Citizenship Resource Center at FOD Follow-up: USCIS will prioritize the processing of Form N-400, Application for Naturalization, for (1) individuals who are within one year or less of having their SSI benefits terminated and (2) whose Form N-400 is pending four months or more from the date of receipt. An applicant for naturalization who will soon lose SSI benefits should request that the application be expedited and inform USCIS two ways. When filing Form N-400, noncitizens receiving SSI benefits can notify USCIS by (1) placing the acronym SSI at the top of first page of the Form N-400 and (2) including a copy of their most recent SSA letter identifying when their SSI benefits will be terminated. If an applicant has already filed an N-400, the application has been pending for more than four months, and the applicant is within less than a year of the termination of SSI benefits, the applicant must notify USCIS by contacting the local USCIS Field Office to provide a copy of their most recent SSA letter identifying when their SSI benefits will be suspended or terminated AILA InfoNet Doc. No (Posted 06/29/11)

43 Field Operations Directorate Question: Lost Record of G-28 on File There have been instances of USCIS loosing our G-28 at filing or midway through the process (i.e. - only client got receipts and when we call for inquiry they say no G-28 on file or we get receipts so clearly a G- 28 exists and then we call and they say no G-28 on file or we never get approval notice.) What should an attorney do? Response: The G-28 should not have been lost; it should be both in the file and record in our systems. ISOs should contact the attorney or representative of record; however, on occasion this does not happen. USCIS believes that these are isolated incidents and would welcome examples. We have asked field leadership to remind ISOs that represented applicants should not be contacted without first notifying the attorney and any notices or correspondence should also be sent to the attorney. Question: N-600s for Individuals Residing Abroad N-600 It is our understanding that an the N-600 applicant (a U.S. citizen) must attend an oath ceremony at the district office. If the N-600 applicant is abroad, can the oath ceremony take place at the U.S. Embassy or at the USCIS office abroad? Also, please advise how filing jurisdiction is determined for an N-600 applicant who resides abroad. Question: N-600s for Individuals Residing Abroad It is our understanding that an the N-600 applicant (a U.S. citizen) must attend an oath ceremony at the district office. If the N-600 applicant is abroad, can the oath ceremony take place at the U.S. Embassy or at the USCIS office abroad? Also, please advise how filing jurisdiction is determined for an N-600 applicant who resides abroad. (L. Rose) Response: Generally, applicants residing abroad file form N-600K, Application for Citizenship and Issuance of Certificate under Section 322 of the Immigration and Nationality Act (INA). Under section 322(d) of the INA, a child of a member of the Armed Forces of the United States, who is residing abroad with the member on official orders, may take his or her oath of allegiance abroad. USCIS recommends that a child eligible under 322(d) file Form N-600K with the USCIS overseas office having jurisdiction over the child s overseas residence, or with the USCIS Nebraska Service Center. Generally, a child residing in the United States who acquired citizenship automatically under section 320 of the INA should file Form N-600, Application for Certificate of Citizenship, to obtain a certificate of citizenship. There is no provision of law that allows a child who automatically acquired under section 320 of the INA to take the oath of allegiance abroad. The provision of law cited above allowing certain children of member of the military to take the oath of allegiance abroad only applies to cases under section 322(d) of the INA, not to section 320 of the INA. Question: N-648 Expiration During the February 18 USCIS webinar on N-648s, there was a question about whether N-648s expire. We were told that USCIS would research this question and provide a definitive response at a later date. Our understanding, dating back to the April 1999 policy guidance, is that the only time restriction on the N-648 is that it be submitted within six months of when it was completed by the medical professional, AILA InfoNet Doc. No (Posted 06/29/11)

44 and that if it is filed within the six month timeframe, it remains valid and does not expire. Can you please clarify if this has changed? Response: Form N-648 must be submitted within six months of when Form N-648 was completed and signed by the medical professional. Although the regulations require the applicant to submit Form N-648 at the time of filing Form N-400, and failure to do so may delay the time for the adjudication of the Form N-400, USCIS also realizes that certain circumstances, including a medical professional s unavailability or the applicant s lack of available funds, may prevent the concurrent submission of Form N-648 and Form N-400. In such cases, the Form N-648 must have been completed within six months of the interview date and applicants requesting a disability exception should present the Form N-648 to the USCIS Office at the beginning of the interview. The USCIS Officer must consider Form N-648 even if it is submitted after the filing of Form N-400 and must not draw any negative inference regarding the applicant s medical condition as a result of the late filing. Once a valid and timely Form N-648 is submitted to USCIS, the form does not expire. Service Center Operations Directorate Question: Recognition of ECFMG Certification Our members continue to report occasional Requests for Evidence on immigrant and nonimmigrant petitions, soliciting evidence that a physician beneficiary s foreign medical degree is the equivalent of a U.S. medical degree despite the fact that the initial petition filing included a certificate from the Educational Commission of Foreign Medical Graduates (ECFMG). We respectfully request that USCIS issue guidance to the field clarifying that an ECFMG Certificate is sufficient evidence of the foreign medical degree s equivalence to a U.S. degree, as evaluation of the foreign degree is part of the ECFMG certification process that is a prerequisite for a foreign-educated physician s admission to U.S. Graduate Medical Education. We would also ask that USCIS remind adjudicators that equivalency to a U.S. medical degree is also sufficiently demonstrated through evidence that the physician beneficiary has passed all three steps of the U.S. Medical Licensing Examination and holds an unrestricted medical license in the state of intended employment. See Adjudicator s Field Manual, Chapter 22.2(j)(1)(D). Therefore, a formal credentials evaluation is not required in circumstances where this alternative test for medical degree equivalency is satisfied. We will break this question/recommendation into two sections. a) Our members continue to report occasional Requests for Evidence on immigrant and nonimmigrant petitions, soliciting evidence that a physician beneficiary s foreign medical degree is the equivalent of a U.S. medical degree despite the fact that the initial petition filing included a certificate from the Educational Commission of Foreign Medical Graduates (ECFMG). We respectfully request that USCIS issue guidance to the field clarifying that an ECFMG Certificate is sufficient evidence of the foreign medical degree s equivalence to a U.S. degree, as evaluation of the foreign degree is part of the ECFMG certification process that is a prerequisite for a foreign-educated physician s admission to U.S. Graduate Medical Education. Response: USCIS would like to note that an equivalency evaluation, including a certificate from the Educational Commission of Foreign Medical Graduates (ECFMG) is advisory in nature and the final determination continues to rest with USCIS (See Matter of Caron International, 19 I&N AILA InfoNet Doc. No (Posted 06/29/11)

45 Dec. 791 (Comm. 1988), Matter of Sea, Inc. 19 I&N Dec. 817 (Comm 1988), and Matter of Ho, 19 I&N Dec. 582 (BIA 1988).). USCIS appreciates this recommendation and may consider this request for future policy guidance. b) We would also ask that USCIS remind adjudicators that equivalency to a U.S. medical degree is also sufficiently demonstrated through evidence that the physician beneficiary has passed all three steps of the U.S. Medical Licensing Examination and holds an unrestricted medical license in the state of intended employment. See Adjudicator s Field Manual, Chapter 22.2(j)(1)(D). Therefore, a formal credentials evaluation is not required in circumstances where this alternative test for medical degree equivalency is satisfied. Response: We will remind adjudicator s that the topic of United States Medical Degree (MD) Equivalency of Foreign Medical Degrees is discussed in AFM Chapter 22.2(j)(1)(D) and introduced in the June 17, 2009 Memo titled, Revisions to Adjudicator s Field Manual (AFM) Regarding Certain Alien Physicians Chapter 22.2(b) General Form I-140 Issues (AFM Update AD09-10). The AFM and this memo outline when a foreign medical degree may qualify as the equivalent of a U.S. MD degree and thus an advanced degree for EB2 purposes, which includes the scenario outlined in the above question. Question: VIBE Requests for Evidence Please provide clarification on the use of the VIBE system to verify an employer s business identity. There are a number of scenarios in which an existing and legitimate employer may not have up-to-date Dun & Bradstreet data (e.g., a hospital system that is acquired by another entity, resulting in a name change; a hospital staffing company with multiple incorporated entities nationwide whose financial data is consolidated into one corporate entity and does not reflect the individual entities in D&B). In these types of situations, petitioners are receiving RFEs that lead to lengthy and costly delays in the employer s ability to meet its staffing needs. Petitioners can certainly provide the kind of documentation requested in VIBE RFEs (e.g., leases, invoices, payment receipts, other documentation of the business operations) as part of the initial filing. However, this would seem to be at odds with VIBE s purported goal of eliminating the need to submit extensive paperwork with each petition. Please provide guidance on what type of evidence petitioners might submit with initial petitions that will avoid the issuance of a VIBEbased RFE. Also, please clarify whether USCIS retains information obtained through VIBE-based RFEs so that the same petitioner need not respond to the same RFE on multiple filings. This again seems counter to VIBE s purpose of reducing redundancy of information collection. Response: As USCIS has stated previously, VIBE is an additional tool for ISOs to use in the overall adjudicative process. USCIS will not deny a petition based upon information from VIBE without first giving the petitioner an opportunity to respond to USCIS s concerns. USCIS will issue an RFE or a Notice of Intent to Deny (NOID) if there is derogatory or contradictory information found in VIBE that is material to the benefit requested and not outweighed by evidence submitted with the petition. The ISO will make a final decision based on the totality of the circumstances AILA InfoNet Doc. No (Posted 06/29/11)

46 USCIS would recommend that petitioners who have very recently made significant changes ffecting their business operations (such as being acquired by a new company or moving to a new location) submit documentary evidence to explain the corporate change and substantiate the nature and identity of the new entity. Doing so may prevent the issuance of an RFE to clarify the petitioner s validity. The goal for VIBE to eventually reduce the redundancy of RFEs related to the validity of a petitioner remains and USCIS continues to work to meet that goal. A recent technical enhancement to the VIBE system provides USCIS with a new capacity to relay information to adjudicators at all Service Centers about evidence received in response to an RFE. However, at this time, petitioners must respond directly to each RFE issued by USCIS --failure to respond directly to USCIS could result in denial. Question: I-539 H-4 Cases When an I-539 is submitted for spouse and two siblings as derivative H-4s and one sibling ages out, the CIS will grant the child who ages out an H-4 status only until his 21 st birthday. If included in the I-539 application is a second child who will not turn 21 years old, will the second child s H-4 be granted only until the older child turns 21 years old? If so, are we required to file a separate I-539 for the younger child to avoid this scenario? Along those lines, will the spouse included with the I-539 also be granted only until the 21 st birthday of the oldest child? It seems that to limit all derivative beneficiaries on the same I-539 to the shortest time available to any one of the beneficiary unfairly reduces the options to the other beneficiaries or forces them to file two separate applications and pay two separate filing fees. Response: The practice at each service center, in accordance with regulations, is that extensions granted to family members on the same application be for the same period of time. The shortest validity period granted to any one member of the family would be the same for all on that application. Specifically, 8 CFR (c)(2) states in part: Extensions granted to members of a family group must be for the same period of time. The shortest period granted to any member of the family shall be granted to all members of the family. Generally, when an H-4 nonimmigrant requests an extension of status, the validity period will be the same as that of the principal. However, if one of the applicants is a dependent child who will turn 21 before the principal alien s stay expires, the validity period for that applicant and any coapplicants will extend until one day prior to the dependent child s 21 st birthday. Question: H-1B Cap Exemption a) Petitioner s Election on Cap Exemption We would like to reiterate our request that USCIS issue guidance to the field clarifying that petitioners may elect to file H-1B petitions as subject to the annual fiscal quota even if the petitioner has previously been approved as cap exempt or otherwise has a basis for claiming cap exemption. We understand that USCIS wishes to approve as many petitions as possible on a cap exempt basis in order to maximize the number of H-1Bs that remain available to cap subject petitioners. However, given the current uncertainty with regard to USCIS standard for adjudicating cap exemption cases - uncertainty that has not been resolved as a result of the April 28, 2011 Interim Policy Memo, which did not articulate a new standard for cap exemption - many petitioners are forced to rely upon cap subject petitions in order to ensure any kind of predictability in planning for their workforce needs. There has been no APA notice and comment AILA InfoNet Doc. No (Posted 06/29/11)

47 rulemaking, or even informal policy guidance explaining USCIS refusal to honor the petitioner s request to be counted toward the H-1B cap, yet several of our members report that their cap subject petitions have been treated as though filed with a request for cap exemption despite having requested a cap number. We request that, at least until USCIS promulgates the new standard on cap exemption mentioned in the March 18, 2011 Press Release, that VSC honor an H-1B petitioner s request to be counted against the cap in all cases. Response: Please note that INA 214(g)(5) states: The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who -- (A) is employed (or has received an offer of employment) at an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity; (B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization; or (C) has earned a master's or higher degree from a United States institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)), until the number of aliens who are exempted from such numerical limitation during such year exceeds 20,000. (emphasis added). Please also note that the page 19 of the Form I-129 instructions state: Regardless of work locations, the following types of petitions should always be sent to the California Service Center 3. H-1B petitions where the employer is statutorily exempt from the cap As such, these petitions should not be filed at the Vermont Service Center. b) Notation on I-797 Regarding Cap Exempt vs. Cap Subject Approval USCIS should consider amending its I-797 Approval Notices for H-1B to provide an annotation as to whether the approved petition has been counted against the annual fiscal quota, or not. In many instances, a beneficiary is personally unaware of whether s/he has been counted toward the H-1B cap since that is indicated only on the I-129 petition filed by the employer and the beneficiary is not always given access to this information or informed of whether the petitioner is cap exempt. This can cause confusion when the beneficiary subsequently transfers to another employer and the new petitioner is uncertain whether the beneficiary has yet been counted toward the cap. Since the beneficiary is almost always given the I-797 Approval Notice for his/her petition, an annotation on that notice would clarify for the beneficiary (and future employers/attorneys) how that petition had been adjudicated. This would also benefit USCIS by providing an easily identifiable marker of cap exemption that ISOs could use when verifying whether a petition is entitled to deference on the issue of cap exemption under the April 28, 2011 Interim Guidance Memo. Response: USCIS thanks IMGT for their suggestion regarding modifications to the Form I-797, Approval Notice. We will examine the feasibility of this under our current systems, as well as under the umbrella of Transformation. c) Clarification on Employed At Cap Exemption Cases AILA InfoNet Doc. No (Posted 06/29/11)

48 As is noted in the plain language of INA section 214(g)(5)(A-B), when the Service determines that a cap exemption applies, the exemption attaches to the entity that has been identified as a related or affiliated nonprofit entity and to all H-1B employees at that entity. The cap exemption is not contingent upon the H-1B beneficiary s participation in any specific activity performed within that entity. This is true regardless of whether the employee will be employed directly by the qualifying nonprofit entity, or employed by a third party to work at the qualifying nonprofit entity. Nonetheless, USCIS policy guidance (See Interoffice Memorandum from Michael Aytes, Associate Director for Domestic Operations, USCIS Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on 103 of the American Competitiveness in the Twenty-first Century Act of 2000 (HQPRD 70/23.12) (June 6, 2006)) and the recently revised I-129 H-1B Data Collection Supplement Form both specify that a beneficiary who will be employed by a third party petitioner to work at a qualifying cap exempt entity must demonstrate that the beneficiary s job duties...directly and predominantly further the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution, namely higher education or nonprofit or government research. This restrictive standard is wholly unsupported by the statute and has a profoundly negative impact on the healthcare sector, in particular. For example, under this standard, a physician employed by a physician practice group working at a nonprofit hospital affiliated with an institution of higher education would not qualify for H-1B cap exemption because the physician s job duties (i.e., treating patients) would not directly and predominantly further higher education. The inclusion of this restriction is an ultra vires contravention of the enabling statute and we request that USCIS issue clarifying guidance retracting this policy and amend the H-1B Data Collection Supplement Form accordingly. (IMGT) Response: We are presently examining this issue within the context of the comprehensive USCIS policy review. We appreciate IMGT bringing this issue forward and we will give full consideration to the position stated by IMGT in developing additional policy guidance. We also anticipate clarifying this issue in the AC21 proposed rulemaking which is currently under development, and stakeholders will have the opportunity to submit comments following the publication of the rule in the Federal Register. Question: I-797 Notices for J-1 Waivers Mailed to Wrong Attorney The Vermont Service Center (VSC) consistently sends I-797 Notices of Action (receipt notices and approval notices) for J-1 waiver cases to attorneys other than the attorney of record named on the G-28. It appears that the receipt notices and approval notices are being mailed to the immigration attorney within the law firm whose last name comes first alphabetically even if that attorney is not the attorney of record for the particular case (please refer to attached chart). We have raised this issue with VSC in the past and have been told that the problem lies with the Department of State s Waiver Review Division failing to give VSC the correct attorney name. However, since the Waiver Review Division has failed to correct this problem despite repeated requests, we would like to ask: (1) Would USCIS please contact the DOS Waiver Review Division and work with it to resolve this issue; (2) Would VSC please re-double its efforts to ensure that the I-797 notices for J-1 waiver cases are sent to the attorney who is cc d on the DOS recommendation letter and whose name appears on the accompanying G-28; (3) Is there anything that we, as practitioners, can do to facilitate this process (e.g., sending another copy of the signed G-28 to the VSC, etc.) AILA InfoNet Doc. No (Posted 06/29/11)

49 Response: The Vermont Service Center (VSC) is aware of the issue and has taken the following steps to ensure that the attorney of record is properly notified: The VSC is seeking to amend the process for uploading this information electronically so that the name of the correct attorney is recorded in USCIS database when more than one attorney is listed on the Department of State (DOS) recommendation; The VSC has contacted DOS to request that waiver recommendations clearly indentify the correct attorney of record; and The VSC has provided additional training to officers processing the waiver requests to ensure that the correct information is recorded on all notices Question: I-485 TRIG/Material Support Cases Please provide an update on I-485 TRIG/material support cases that are still pending and what efforts are being made to re-review those cases, particularly to determine whether there actually is a material support basis to hold the case. CBOs were previously instructed to contact the HQ Service Center Operations unit with requests for re-review of cases known to be pending on this basis. However, advocates have followed this procedure, but have not received responses to inquiries that have been submitted. Many of these cases have been pending with the NSC for 6 or more years. The I-485 Liberian refugee hold cases, for example, were initially put on hold in 2007 apparently for Liberian refugees who had been merely living in the Ivory Coast prior to entry into the U.S. Interviews of some applicants were done in December 2008 or 2009, and then cases lay dormant until recently, when the remaining 255 cases have started being transferred to local offices for interviews. Given the broad sweep of this hold (i.e., Liberian residence in the Ivory Coast prior to entry into the U.S.), can you indicate whether some/most of the other TRIG/MS cases on hold relate to broad categories of people? Shouldn t the applicant at least be given specific information as to why his/her case is on hold instead of that the problem is merely a material support issue? The Service s inability to adjudicate these TRIG/MS cases within any reasonable timeframe is a blight on the reputation of an agency that is fortunately becoming more and more accountable to its stakeholders. We urge HQs to have Service Centers re-review these cases to determine if at least some cases can be taken off hold because the basis for the hold was in error or the alleged membership or MS to an organization is no longer pertinent because the group is no longer considered a Tier III organization. Response: The service centers have taken the initiative to conduct ongoing reviews of cases on hold for TRIG to determine if they can be cleared for adjudication. Cases may be cleared for adjudication for a number of reasons, such as a change in a group s status, a new exercise of the Secretary s discretionary exemption authority, new information relating to country conditions or to specific applicants, and updated legal interpretation. As a result of these reviews, last year, the service centers released approximately 3,500 cases previously on TRIG hold. Such reviews are ongoing, and cases will be released for adjudication as appropriate. We endeavor to respond to all queries on cases that are believed to be on hold for TRIG in a timely manner. If you are aware of specific queries that have not received responses, please let us know so that we can resolve the requests for information. Specific reference is made in the question to Liberian cases. Please note that certain Liberian refugee adjustment of status cases were placed on hold for review due to issues relating to the civil war. Approximately 90 percent of the Liberian cases that were put on hold for review have AILA InfoNet Doc. No (Posted 06/29/11)

50 been cleared for adjudication, and the remaining approximately 250 cases, which have been determined to require an interview, have been transferred to field offices to conduct the interviews AILA InfoNet Doc. No (Posted 06/29/11)

51 Meeting Invitation Quarterly National Stakeholder Meeting Wednesday, June 29, 2:00 pm (EDT) Tomich Conference Center 111 Massachusetts Ave, NW Washington, DC The USCIS Office of Public Engagement invites any interested parties to participate in a quarterly national stakeholder meeting on Wednesday, June 29, 2011 at 2:00pm (EST). The purpose of this engagement is for individual participants to raise issues regarding agency operations and to aid the agency in identifying systemic issues. USCIS is seeking agenda items and questions from individual stakeholders on specific operational concerns, policies, and/or procedures. Relevant subject matter experts from agency Program Offices and Directorates will attend the meeting based on suggested agenda items and stakeholder questions. To Participate in the Session Any interested parties may participate in this event in person or by telephone. To respond to this invitation, please contact the Office of Public Engagement at public.engagement@dhs.gov by June 28, 2011, and reference the following in the subject line of your If you plan to attend in person, please reference Quarterly In Person If you plan to attend by phone, please reference Quarterly Phone Please also include your full name and the organization you represent, if any, in the body of the . To Submit Agenda Items If you would like to submit agenda items and questions you must RSVP via and attach a Word document or PDF with suggested items. All submissions should be received by the Office of Public Engagement by COB Friday, May 27, We look forward to engaging with you! AILA InfoNet Doc. No (Posted 04/29/11)

52 AILA InfoNet Doc. No (Posted 9/27/11)

53 Overview This presentation will cover three different types of humanitarian benefits related to the I-130, Petition for Alien Relative. Conversion to I-360 for Surviving Spouses Section 204(l) of the Immigration and Nationality Act Humanitarian Reinstatement AILA InfoNet Doc. No (Posted 9/27/11)

54 Conversion to I-360 for Surviving Spouses AILA InfoNet Doc. No (Posted 9/27/11)

55 Background of I-360 Conversion Section 568(c) of the FY 10 DHS Appropriations Act Public Law , enacted on 10/28/09, amended existing benefits for surviving spouses of U.S. citizens. The DHS Appropriations Act amended the widow/widower provisions to remove the 2 year marriage requirement. AILA InfoNet Doc. No (Posted 9/27/11)

56 Background of I-360 Conversion (Cont d) An I-130 spousal petition: that was pending when the U.S. citizen spouse died is adjudicated as a pending I-360 widow/widower petition. that was approved when the U.S. citizen spouse died is treated as an approved I-360 widow/widower petition. The surviving spouse must meet the legal requirements for widow/widower classification and must not have remarried. AILA InfoNet Doc. No (Posted 9/27/11)

57 Who Can Receive I-360 Conversion Benefits? The surviving spouse, if: The deceased was a U.S. citizen, The deceased spouse had already filed Form I- 130 on behalf of the surviving spouse, The marriage to the citizen was bona fide, The surviving spouse and citizen were not legally separated at the time of death, and The surviving spouse has not remarried. AILA InfoNet Doc. No (Posted 9/27/11)

58 Who Can Receive I-360 Conversion Benefits? (Cont d) Children of widows/widowers are eligible for derivative classification. They can be included in the approved I-360 and follow to join the principal. AILA InfoNet Doc. No (Posted 9/27/11)

59 Who Can Receive I-360 Conversion Benefits? (Cont d) When the widow/er s approved or pending I-130 converts to an approved or pending I-360, the children are included, regardless of whether the U.S. citizen step-parent had filed separate petitions for them. If the children are able to adjust based on the I- 360, any previously submitted I-130, in their behalf, will be terminated. AILA InfoNet Doc. No (Posted 9/27/11)

60 How is I-360 Conversion Requested? Conversion need not be requested, as it occurs automatically for both pending and approved I-130 petitions. The beneficiary does, however, need to inform USCIS of the petitioner s death, and provide a death certificate. AILA InfoNet Doc. No (Posted 9/27/11)

61 Other Ways to Obtain Widow/Widower Classification via Form I-360 If the surviving spouse did not have a pending or approved I- 130 on file when the U.S. citizen spouse died, he/she may file Form I-360 in the following situations, if: A spousal I-130 was denied before 10/28/09 Form I-360 must be filed on or before 10/28/11 A spousal I-130 was never filed and the citizen s death occurred before 10/28/09 Form I-360 must be filed on or before 10/28/11 AILA InfoNet Doc. No (Posted 9/27/11)

62 Other Ways to Obtain Widow/Widower Classification via Form I-360 (Cont d) A spousal I-130 was never filed and the citizen s death occurred on or after 10/28/09 Form I-360 must be filed within two years of the citizen s death Surviving spouses should file Form I-360 with the appropriate Lockbox, as designated on that form s instructions. AILA InfoNet Doc. No (Posted 9/27/11)

63 Service Centers Decision and Notification When an I-130 is with Service Center Operations (SCOPS) and is converted to Form I-360: Service Centers will send the beneficiary a written decision notifying him/her of the conversion. If not eligible for conversion: The I-130 will be denied/revoked and a notice of the decision will be sent to the beneficiary stating the reason(s) for denial/revocation. AILA InfoNet Doc. No (Posted 9/27/11)

64 Questions? AILA InfoNet Doc. No (Posted 9/27/11)

65 Section 204(l) AILA InfoNet Doc. No (Posted 9/27/11)

66 Background of 204(l) Section 568(d) of the FY 10 DHS Appropriations Act created INA section 204(l) to provide benefits to other surviving relatives, including the spouses of deceased lawful permanent residents. For family-based petitions, INA 204(l) covers principal and derivative beneficiaries. It also covers the adjustment application (IF eligible to adjust) and related applications. AILA InfoNet Doc. No (Posted 9/27/11)

67 Who Can Receive Benefits Under 204(l)? This law was enacted on October 28, 2009 and applies to any petition adjudicated on or after that date - even if the case was filed before that date. While eligibility for relief under 204(l) is not limited to I-130 cases, this presentation will focus on I-130 cases. AILA InfoNet Doc. No (Posted 9/27/11)

68 Who Can Receive Benefits Under 204(l)? (Cont d) In the context of family-based petitions, the following surviving beneficiaries are potentially eligible for benefits under INA 204(l): The principal beneficiary of an Immediate Relative or family-based preference visa petition The derivative beneficiary of a family-based preference visa petition The family-based petition may have been pending or approved when the petitioner or principal beneficiary passed away AILA InfoNet Doc. No (Posted 9/27/11)

69 Who Can Receive Benefits Under 204(l)? (Cont d) Further, to qualify for 204(l) benefits, the surviving beneficiary must: Have resided in the U.S. when the qualifying relative (petitioner or principal beneficiary) died; and Continue to reside in the United States on the date of the decision on the pending petition or application. If one derivative beneficiary meets the residence requirements, the petition can be approved/reinstated which means the remaining derivative beneficiaries also obtain the benefit. A Form I-864, filed by an eligible substitute sponsor, may be required for most family-based petitions. AILA InfoNet Doc. No (Posted 9/27/11)

70 Who Can Receive Benefits Under 204(l)? (Cont d) All other I-130 eligibility requirements must be met through the submission of all required regulatory documentation. Beneficiary must have a qualifying relative willing to act as the substitute sponsor on Form I-864, Affidavit of Support No fee is necessary. No official form exists. AILA InfoNet Doc. No (Posted 9/27/11)

71 Qualifying Relative Spouse, Parent, Mother-in-law or father-in-law, Sibling, Child who is at least 18 years of age, son or daughter, Son-in-law or daughter-in-law, Sister-in-law or brother-in-law, Grandparent Grandchild Legal Guardian AILA InfoNet Doc. No (Posted 9/27/11)

72 Qualifying Relative, cont. Must be a United States Citizen, National or Lawful Permanent Resident 18 years of age or older Domiciled in any state of the US, District Columbia or any US territory/possession Must demonstrate the means to maintain annual income at least 125% of Federal Poverty Line Form I-864 is not adjudicated until the beneficiary is undergoing the visa issuance or adjustment of status process AILA InfoNet Doc. No (Posted 9/27/11)

73 How is 204(l) Requested? For pending petitions: Send your request for 204(l) consideration, accompanied by the death certificate and evidence of qualifying U.S. residence, to the office that has the relative petition. For approved petitions where USCIS has not sent a notice of automatic revocation: Send request to the USCIS office that approved the I-130 OR to the USCIS office with jurisdiction of a pending I-485. AILA InfoNet Doc. No (Posted 9/27/11)

74 How is 204(l) Requested? (Cont d) For petitions that were denied or where USCIS sent a notice of automatic revocation, 204(l) eligibility can be requested in the following ways: For petitions denied/revoked before 10/28/09: An untimely motion can be submitted on Form I- 290B with fee, or fee waiver request. Motion should be accompanied by the death certificate and evidence of qualifying U.S. residence. The motion should be filed with the appropriate Lockbox AILA InfoNet Doc. No (Posted 9/27/11)

75 How is 204(l) Requested? (Cont d) For petitions denied/revoked on or after 10/28/09: A request for Government motion can be submitted. The request for Government motion should be accompanied by the death certificate and evidence of qualifying U.S. residence. No official form exists for requesting Government motions. There s no fee for a Government motion. The request for Government motion should be sent to the office that denied or revoked the petition. AILA InfoNet Doc. No (Posted 9/27/11)

76 Service Centers Decision and Notification 204(l) determinations on pending petitions, or approvals returned from the Department of State: When 204(l) eligibility is established: Service Centers will send the beneficiary an electronically-generated approval/reaffirmation notice. If 204(l) eligibility is not established: The I-130 will be denied/revoked and a notice of decision will be sent to the beneficiary that discusses the reason(s) for denial/revocation. AILA InfoNet Doc. No (Posted 9/27/11)

77 Questions? AILA InfoNet Doc. No (Posted 9/27/11)

78 Humanitarian Reinstatement (HR) AILA InfoNet Doc. No (Posted 9/27/11)

79 Background An approved petition is revoked automatically upon the death of the petitioner The regulations allow USCIS to exercise discretion and reinstate the approval of a family-based immigrant visa petition, for humanitarian reasons By regulation, only automatically revoked family-based petitions are eligible for consideration USCIS determines whether to exercise discretion on a case-by-case basis, given the humanitarian considerations of the particular case AILA InfoNet Doc. No (Posted 9/27/11)

80 Who Is Eligible? By regulation, the principal beneficiary of an approved family-based immigrant visa petition The petition must have been approved prior to the death of the petitioner Derivative beneficiaries entitled to accompany or follow to join principal beneficiary AILA InfoNet Doc. No (Posted 9/27/11)

81 How to Apply? Principal beneficiary makes request No official form Letter of request and supporting documentation is sent to the USCIS office that rendered the most recent decision Beneficiary must have a qualifying relative willing to act as the substitute sponsor on Form I-864, Affidavit of Support No fee Request may be submitted at any time AILA InfoNet Doc. No (Posted 9/27/11)

82 Relatives Eligible to be Substitute Sponsors for Form I-864 Spouse, Parent, Mother-in-law or father-in-law, Sibling, Child who is at least 18 years of age, son or daughter, Son-in-law or daughter-in-law, Sister-in-law or brother-in-law, Grandparent Grandchild Legal Guardian AILA InfoNet Doc. No (Posted 9/27/11)

83 Substitute Sponsors (Cont d) Must be a United States Citizen, National or Lawful Permanent Resident 18 years of age or older Domiciled in any state of the US, District Columbia or any US territory/possession Must demonstrate the means to maintain annual income at least 125% of Federal Poverty Line Form I-864 is not adjudicated until the beneficiary is undergoing the visa issuance or adjustment of status process AILA InfoNet Doc. No (Posted 9/27/11)

84 What to Submit Required letter from the Beneficiary requesting reinstatement describing the reasons for the request Evidence of substitute sponsor s status in the US Form I-864 (must contain original signature of substitute sponsor) Evidence to support humanitarian reason for request AILA InfoNet Doc. No (Posted 9/27/11)

85 Helpful Documentation Evidence of relationship with substitute sponsor Death certificate of the petitioner Copy of approval notice (Form I-797) Any correspondence received from the Department of State AILA InfoNet Doc. No (Posted 9/27/11)

86 Factors Considered The impact of revocation on the family unit in the United States, especially on U.S. citizen or LPR relatives or other relatives living lawfully in the United States; The beneficiary s advanced age or poor health; The beneficiary s having resided in the United States lawfully for a lengthy period; The beneficiary's ties to his or her home country; and Significant delay in processing the case after approval of the petition and after a visa number has become available, if the delay is reasonably attributable to the Government rather than the alien. AILA InfoNet Doc. No (Posted 9/27/11)

87 Processing Requests No standard processing time Expedited handling may be requested and is held to the same standards as any pending application/petition If a favorable decision is made, Approval is reinstated and reaffirmed Petition is forwarded back to the NVC or housed in beneficiary s A- file Notification is sent to the estate of the deceased in care of the substitute sponsor If unfavorable decision is rendered, Petition remains revoked Notice is sent to the estate of the deceased in care of the substitute sponsor with an explanation of why the request did not meet the criteria Decision cannot be appealed Motion to reconsider may be filed with fee AILA InfoNet Doc. No (Posted 9/27/11)

88 Who Is Not Eligible for Humanitarian Reinstatement under INA 205? Principal, family-based beneficiaries are not eligible if the petitioner s death occurred before the petition was approved Such beneficiaries may seek benefits under 204(l) if they meet the residence requirements Derivative beneficiaries, regardless of when the petitioner or principal beneficiary passed away and regardless of the place of residence at the time of death. - A derivative may seek benefits under 204(l) when the principal passed away if they meet the residence requirements AILA InfoNet Doc. No (Posted 9/27/11)

89 What are the Differences Between INA 204(l) and 8 CFR Reinstatement? INA 204(l) provides for reinstatement on: Pending and approved petitions Family-based principal and derivative beneficiaries Please Note: INA 204(l) requires the principal/ derivative beneficiary to be residing in the U.S. when the qualifying relative died. AILA InfoNet Doc. No (Posted 9/27/11)

90 What are the Differences Between INA 204(l) and 8 CFR Reinstatement? (Cont d) 8 CFR provides for reinstatement on: Family-based petitions that were approved while the petitioner was alive, but approval was revoked automatically when the petitioner died, regardless of where the beneficiary was residing. 8 CFR does not cover: Any pending family-based petitions Derivative beneficiaries (if the principal beneficiary died) AILA InfoNet Doc. No (Posted 9/27/11)

91 When are INA 204(l) and 8 CFR Available? Both the 204(l) and options are available on family-based cases where: Surviving relative is the principal beneficiary; Petition was already approved when the petitioner died; and Principal beneficiary resided in the U.S. when the petitioner died. Unless exempt under 8 CFR 213a.2(a)(2)(ii), a legally binding I-864 will be required from an eligible substitute sponsor. AILA InfoNet Doc. No (Posted 9/27/11)

92 Only INA 204(l) is Available Only the 204(l) option is available if the: Surviving relative is the derivative beneficiary; and/or Petition was pending or approved when the petitioner died. AILA InfoNet Doc. No (Posted 9/27/11)

93 Only 8 CFR is Available Only the 8 CFR option is available if the: Surviving relative is the principal beneficiary of a family-based petition The petition was approved when the petitioner died. The surviving relative was not residing in the U.S. when the petitioner died. AILA InfoNet Doc. No (Posted 9/27/11)

94 Questions? AILA InfoNet Doc. No (Posted 9/27/11)

95 USCIS Service Center Stakeholder Meeting Humanitarian Reinstatement - September 27, 2011 I-360 Conversion for Surviving Spouse Questions o About notifying USCIS of death, if it is a consular processing case, do we notify USCIS wherever the case is? E.g. Consulate? NVC? Answer: You should contact the NVC or consular post as a first step whatever office has jurisdiction at the time of the event. The State Dept has made corresponding changes to the Foreign Affairs Manual to handle the automatic conversion process. 9 FAM Note 5.1, A B, effective 10/4/2010. o Is there a memorandum between DOS and USCIS to allow for the I-130 to be converted to I-360 at the consulate? Answer: It was USCIS intent to have the consular post be able to handle the conversion to the I-360 instead of having the petition be sent back to USICS for revocation and then conversion. This is why the FAM was amended to include 9 FAM Note 5.1. It was recently brought to USCIS attention that not all consulates are aware that they can do this automatic conversion at post. o When the I-360 is initially filed after the death of spouse, is a psychological report helpful to show PTSD/emotional harm of the widow? Answer: Question is confusing automatic conversion and VAWA. For automatic conversion, eligibility requirements are only based on the bona fides of the marriage and contingent upon not being legally separated when petitioner died and not remarrying. o Question about need for substitute sponsor. Answer: No need for a substitute sponsor for the I-864 with the automatic conversion I-360. Section 204(l) of the Immigration and Nationality Act Questions o If someone has an I-485 pending based on approved I-130, and during the I-485 adjudication process the petitioner dies, what is the appropriate next step? AILA InfoNet Doc. No (Posted 9/27/11)

96 Answer: You can do the following: Notify the USCIS office that has the I-485 of the death by making an Infopass appointment. You can also attend the interview with the death certificate and other necessary documents for 204(l). o When do you need to file the I-290B? Answer: When the petition was denied/revoked pre-enactment, prior to 10/28/09. o Question regarding adjudication of I-601 waivers for unlawful presence, etc, when the petitioner has died and the beneficiary can benefit from 204(l). Are there special procedures being implemented for the waiver process if one is required? Answer: No special procedures being implemented, and the timeframe for adjudication is unchanged. If there is a genuine emergency that would fall under the established expedite procedures, USCIS would be willing to expedite. o Question about the requirement that the principal beneficiary must be residing in the U.S. to benefit from 204(l) -- what if the beneficiary is undocumented? What if the beneficiary habitually lives in the U.S., but is traveling abroad temporarily when the petitioner dies? What if the beneficiary habitually lives abroad, but is in the U.S. on the day petitioner dies? Answer: Person does not necessarily have to be here in lawful status. Eligibility will come down to the facts of each case. The only question is: where is the person s place of residence? This is defined by statute as the person s actual principal dwelling place. If the person s actual principal dwelling place is in the U.S. and they were abroad at the time of the petitioner s death, then they could still show that they were residing in the U.S. in spite of a temporary trip abroad. o Question regarding derivative beneficiaries who meet residency requirements, but others derivatives who do not can you provide an example of this to clarify? AILA InfoNet Doc. No (Posted 9/27/11)

97 Answer: Example - LPR files I-130 for unmarried son or daughter and the son or daughter has 4 children. The 4 children are the derivative beneficiaries. Let s say that two of the children live in the U.S. with the principal beneficiary, and two of the children live abroad. Either the petitioner or the principal beneficiary passes away. All of the derivative children can benefit. The children living in the US can adjust, and the children who are living abroad can follow to join. o Under 204(l), if the primary beneficiary qualifies and all of her kids are living abroad, do the kids qualify? Answer: Yes. If they are admissible and still children, they can consular process. o When do you make the request for 204(l) when the priority date is not yet current? Answer: Notify NVC of the death ahead of time. They will add it to the file. o How long is it taking for 204(l) cases to be adjudicated? What is the approval rate? Answer: Processing Times: These cases do not arise with such regularity that there is a standard processing time; USCIS tries to process as quickly as possible. You can always make request for expedited processing if it falls within expedite criteria. No statistics on approval rates. Humanitarian Reinstatement (HR) and Requests for Expeditious Adjudication Questions o If the primary beneficiary is alive and has derivatives and applies for HR, are the derivatives included? Answer: Yes. o For HR, if the case is at NVC or a consular post, where do you send request? Answer: Send to NVC or to the USCIS office that has jurisdiction over the original petition. AILA InfoNet Doc. No (Posted 9/27/11)

98 o Are there any specific deadlines for 204(l) and HR? Answer: Only deadline is for widow petition when an I-130 was never filed - If spouse died before 10/28/09, you need to file the I-360 petition within 2 years of enactment. In other words, the deadline is 10/28/2011. If the spouse died after 10/28/09, the I-360 petition must be filed within 2 years of citizen s death. o Can CSPA be applied to 204(l) and HR? Answer: Same calculations are applied under the CSPA. 204(l) does not change CSPA analysis. Go to Q&A on website from late June 2011 national stakeholder engagement for more information. AILA InfoNet Doc. No (Posted 9/27/11)

99 Meeting Invitation Service Center Operations Monthly Stakeholder Teleconference The USCIS Service Center Operations Directorate invites interested stakeholders to participate in the next Monthly Stakeholder Teleconference scheduled for Tuesday, September 27, 2011 from 2:00pm to 3:30pm Eastern Time. These engagements present an opportunity for stakeholders to receive current information from service center officials on particular topics of interest. The California Service Center will host the September teleconference with assistance from the Vermont Service Center. The topic for this teleconference will be Form I-130, Petition for Alien Relative (Humanitarian Relief) and we will address issues including I-360 Conversion for Surviving Spouse, Section 204(l) of the Immigration and Nationality Act, Humanitarian Reinstatement and Requests for Expeditious Adjudication. Engagement Date Topic Deadline to Submit Agenda Items September 27, 2011 I-130 Humanitarian Relief Friday, September 2, 2011 Agenda Items: Please submit agenda items to California Service Center Community Engagement Officer Ana Rili at by COB Friday, September 2 nd. RSVP: If you would like to participate in the September teleconference, please provide your full name and the organization you represent to Ana Rili at ana.rili@dhs.gov by COB Tuesday, September 20 th and reference September 27 th Teleconference in the subject line. For additional information, please contact Ana Rili by . We look forward to engaging with you! AILA InfoNet Doc. No (Posted 9/27/11)

100 June 1, 2010 Office of Public Engagement United States Citizenship & Immigration Services 20 Massachusetts Ave., NW Washington, DC VIA Re: AILA Comment on USCIS Draft Memorandum: Approval of Petitions and Applications after the Death of the Qualifying Relative; New INA Section 204(l) updates the AFM with New Chapter 20.6 and an Amendment to Chapter 21.2(h)(1)(C) The American Immigration Lawyers Association (AILA) hereby submits the following comments to the above-named draft memorandum. AILA is a voluntary bar association of more than 11,000 attorneys and law professors practicing, researching and teaching in the field of immigration and nationality law. The organization has been in existence since 1946 and is affiliated with the American Bar Association. Our mission includes the advancement of the law pertaining to immigration and nationality and the facilitation of justice in the field. AILA members regularly advise and represent businesses, U.S. Citizens, U.S. lawful permanent residents, and foreign nationals regarding the application and interpretation of U.S. immigration laws. We appreciate the opportunity to comment on the proposed rule and believe that our members collective expertise provides experience that makes us particularly well-qualified to offer views that we believe will benefit the public and the government. We now provide the following comments to the above-named draft memorandum. Introduction AILA appreciates the opportunity to provide comment on the recently released draft policy memorandum, Approval of Petitions and Applications after the Death of the Qualifying Relative; New INA Section 204(l) updates the AFM with New Chapter 20.6 and an Amendment to Chapter 21.2(h)(1)(C). The memorandum clarifies a number of areas of concern to our members. We welcome the recognition that the grant of benefits under 204(l) is not prohibited in cases arising prior to the date of AILA InfoNet Doc. No (Posted 06/03/10)