Congress
passed a noble law in 2009 to protect surviving family members who were the
derivatives of employment-based and other categories of petitions and
applications. Specifically, the
law provides that certain categories of individuals could continue to have petitions,
adjustment applications and related applications adjudicated so long as they
were residing (not necessarily present, but residing) in the United States at
the time the qualifying relative died and continuing to reside in the United
States. The statute specifically
states that the named categories of individuals “shall have” a “pending or
approved” petition of the type listed in subsection 2 of the statute “and
any related applications adjudicated notwithstanding the death of the
qualifying relative . . . .” INA § 204(l)(1)(emphasis
added).
This
blog will focus on the problems arising in the context of surviving relatives
of beneficiaries of employment-based petitions who have filed adjustment
applications. Given the backlogs
in the EB-3 category for India for example making people wait decades before
their priority dates become current, there may be more and more surviving
relatives to deal with. This blog
seeks to help shed some light on surviving relative cases and highlight some of
the overall problems with the lack of clear guidance from USCIS on what
surviving relatives should do and how their requests will be handled.
The
statute is worth reviewing in its entirety to demonstrate how odd it is that
USCIS treats surviving relatives differently based on whether an I-140 has been
approved or remains pending:
(l) SURVIVING
RELATIVE CONSIDERATION FOR CERTAIN PETITIONS AND APPLICATIONS-
(1) IN GENERAL- An alien described in paragraph
(2) who resided in the United States at the time of the death of the qualifying
relative and who continues to reside in the United States shall have such
petition described in paragraph (2), or an application for adjustment of status
to that of a person admitted for lawful permanent residence based upon the
family relationship described in paragraph (2), and any related applications,
adjudicated notwithstanding the death of the qualifying relative, unless the
Secretary of Homeland Security determines, in the unreviewable discretion of
the Secretary, that approval would not be in the public interest.
(2) ALIEN DESCRIBED- An alien described in this
paragraph is an alien who, immediately prior to the death of his or her
qualifying relative, was--
(A) the beneficiary of a pending or
approved petition for classification as an immediate relative (as described in
section 201(b)(2)(A)(i) );
(B) the beneficiary of a pending or
approved petition for classification under section 203 (a) or (d) ;
(C) a derivative beneficiary of a pending
or approved petition for classification under section 203(b) (as
described in section 203(d) );
(D) the beneficiary of a pending or
approved refugee/asylee relative petition under section 207 or 208 ;
(E) an alien admitted in `T' nonimmigrant
status as described in section 101(a)(15)(T)(ii) or in `U' nonimmigrant status as described in section 101(a)(15)(U)(ii) ; or
(F) an asylee (as described in section 208(b)(3) ).
As
you can see, the law helps a host of categories of individuals, but here we
will use the example of families who suffered the loss of a member who had been
sponsored by an employer, with the sole difference being that in one case the
I-140 had been approved and in the other the I-140 remains pending. In both cases, the families have been
able to file their green card applications.
Mahjouba
and Karim came to the United States from Morocco, two young children in tow,
when Mahjouba was sponsored by a company on an H-1B visa. After two years, the company was so
impressed with her work that they sponsored Mahjouba for an immigrant
visa. The immigrant petition on
Form I-140 was filed premium processing on her behalf and quickly approved. When her priority date became current,
the family submitted their adjustment of status applications, along with
advance parole and work authorization applications. Karim used his EAD and started working. When the family traveled, he used his
advance parole.
Henri
and Helene came from France when Henri was sponsored for an H-1B, and they also
brought their children. After a
few years of working with the company, he was sponsored for an immigrant
visa. The immigrant petition on
Form I-140 was filed regular processing, and remains pending along with the
adjustment applications, which were filed concurrently because Henri’s priority
date was current at the time of filing.
Helene decided to use her EAD to work and her advance parole to travel,
instead of depending on her H-4, while the immigrant petition for her husband
and the families’ adjustment applications were pending.
Tragedy
strikes both families. Mahjouba
became very ill and died from a rare form of cancer. Henri was hit by a drunk driver and killed.
The
families are in similar straits – the person sponsored by an employer has been
killed. Their dependents are residing
in the United States, grieving and wondering what will happen to us now?
It
seems quite clear from the statute that Karim and his kids and Helene and her
kids should be protected in the same way.
So long as they meet the requirements of the law – that is, at least one
member of each family was residing in the United States at the time of death and
will continue to reside in the United States, their “pending or approved”
petitions and adjustment of status applications should continue to be adjudicated
as if the death had not occurred, unless the Secretary of Homeland Security
decides that approval would not be in the public interest. Thus, they should be able to renew their
EAD and AP documents, and continue to work and travel and ultimately get their
green cards.
Unfortunately,
because USCIS took the position in Policy
Memorandum, Approval of Petitions and Applications after the Death of the
Qualifying Relative , PM-602-0017 (December 16, 2010) (“Policy Memo”) (and
in the Adjudicator’s Field Manual sections it revised pursuant to that
memorandum) issued December 16, 2010, that pursuant to 8 C.F.R. § 205.1(a)(3)(iii)(B), an approved I-140 is automatically revoked when the individual
sponsored dies, Karim and his family will not have the same security of knowing
their petitions will proceed and may be subject to a different, more intense
standard, i.e. to request “humanitarian reinstatement.” I say “may” be subject to the more
exacting standard because the policy memorandum is not clear on the matter, and
does give an adjudicating officer an “out” by stating “reinstatement is
generally appropriate as a matter of discretion, if section 204(l) of the Act and Chapter 10.21 of the
AFM [Adjudicator’s Field Manual] would support approval of the petition if it
were still pending.” Policy Memo
at p. 15 (and AFM 10.21(7)).
As
the Citizenship
and Immigration Services Ombudsman, and many others, have noted, in taking
the position that an approved I-140 is automatically revoked by the death of
the beneficiary, thus requiring humanitarian reinstatement, USCIS guidance “does
not align with the purpose and plain language” of the statute. The bifurcated approach is unfair,
unnecessary and nonsensical. Why
would a pending I-140 petition be treated more favorably than an approved I-140
petition, as the approved petition has been vetted and completed and revoking
it works a hardship on derivative beneficiaries that Congress intended to
prevent by enacting INA § 204(l)? At the very least, they should be treated the same – that is
what the law in fact dictates. The
American Immigration Lawyers Association (AILA) made an interesting argument in
comments it
submitted on USCIS’s draft memorandum.
Specifically, AILA demonstrated that the automatic revocation provision
does not apply where INA § 204(l) applies.
The automatic revocation regulations purport to
revoke an approved petition only “upon the death of the petitioner or the
beneficiary,” so they can be seen as having no operation, because §204(l)
preserves the petition the moment before death. Therefore, the “immediately prior to the death” language of §204(l)
trumps the “upon the death” language of the regulations on automatic revocation
at 8 CFR §205.1. For the §204(l) eligible beneficiary, therefore, automatic
termination has no effect on the already approved petition. This holds true for
all §204(l) eligible beneficiaries, including those who cannot currently avail
themselves of humanitarian reinstatement
See 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)” (June 1, 2010) at p.6.
Putting
aside the unfairness (if we can bring ourselves to do that), what do Karim and
Helene need to do, how can they embrace the protection Congress has provided
for their families? Unfortunately,
as the Ombudsman determined, “no clear process is available for survivors to
request benefits from USCIS under INA section 204(l).” See Ombudsman Report at p. 2.
Reviewing
the policy memorandum and AFM section 10.21 gives no hint of what Helene should
do. There are no instructions for
individuals whose qualifying relative’s petition was still pending at the time
of death. Presumably it and
related application will continue to be processed and the family can use and
renew their EAD and AP to work and travel, respectively, without issue. Maybe. More on that aspect below.
Karim
can get some direction from AFM 10.21(7).
That section, as noted above, dictates that Mahjouba’s I-140 petition
was automatically revoked upon her death and that Karim needs to look to AFM
21.2(h)(1)(C) for guidance on reinstating Mahjouba’s petition and obtaining the
protection of INA § 204(l). Before going on to that, note that
USCIS will not give effect to Mahjouba’s employer’s request to withdraw the
I-140 approval after her death “since the employment-based petitioner no longer
has any legal interest in the immigration of the principal beneficiary’s
widow(er) or children.” AFM
10.21(c)(3).
So,
what does Karim need to do? AFM
21.2(h)(1)(C) directs someone in Karim’s position to “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.” This section also
directs that the request must include a copy of the approval notice for the
revoked petition and the death certificate of the qualifying relative.
Although it is not stated
in this section, to comply with the requirements of the statute, Karim would
need to include proof of his residence in the United States at the time of his
wife’s death and that he continues to reside in the United States. In addition, it would be prudent for him
to include a copy of each family member’s I-485 receipt notice, which should
include each individual’s alien number, all of which could assist USCIS in
matching up the request to each family member’s file.
Once the request is
submitted, USCIS takes the position that a request like Karim’s, because it
involved an I-140 that was previously approved and in USCIS’s view
automatically revoked, is a request for humanitarian
reinstatement, is discretionary, and may be denied “if the director decides
that humanitarian reinstatement is not warranted.” AFM
21.2(h)(1)(C). The section goes on
to state:
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 10.21 of this AFM would support approval of the
petition if it were still pending.
It is unclear what guidance, given the lack of “other rules and precedents”, terms like “may be appropriate” or “generally appropriate” provide to the adjudicating officer, but one would hope that given Congress’s intent to protect individuals in Karim’s position, and the fact that the statute clearly states it covers those with “pending or approved” petitions, that, barring other grounds of ineligibility, the I-140 should be reinstated and the adjustment applications and related applications should continue, as if his wife had not died.
Presumably, Helene could submit a similar packet to ensure the protections of §204(l) are applied to her and her family. In her case, she need not request reinstatement, but presumably she too would need to provide proof of her spouse’s death, and demonstrate residence in the United States at the time of his death and her intent to continue to reside in the United States. Because her husband’s I-140 is still pending, the best guess is that she needs to send the information to the Service Center processing his I-140.
As
pointed out above, there is no clear system in place for how USCIS handles
these requests, acknowledge these requests, process these requests, or give
notice to family members about these requests. Because there are no regulations, no form, and no guidelines
other than what may be “appropriate”, there is little a family can do but
contact USCIS or perhaps even the Ombudsman’s office to try to get
acknowledgement that their applications are being adjudicated.
A
big question arises with regard to travel. It would appear that the ability to travel after submission
of the request by someone in Helene’s position might be a bit safer than
someone in Karim’s position, given that Henri’s pending I-140 petition remains
pending. But what happens if the
request is still pending or is denied while the family is out of the country,
using their valid advance parole documents to travel? Clearly if the request has been denied, the family should
not travel and if they are outside the country they could get stranded, as this
has happened to similarly situated individuals. But if the request is still pending, should Karim and his
family take the risk of traveling?
One would counsel probably not, because even though the advance parole
document was valid when they left the country and remains, on its face, valid
and no notice of its revocation has been given, CBP might not honor the
documents at the border if they see that the underlying I-140, upon which all
other applications depend, has been automatically revoked and not yet
reinstated by USCIS.
One
last diversion: what about those individuals who have an approved or pending
EB-3 I-140, are from countries with severely backlogged priority dates like
India, and therefore have not yet been able to file an adjustment
application? What does an
individual in H-4 status do when his or her H-1B spouse dies? The statute clearly states that
individuals in this category should be covered, see INA § 204(l)(2)(C), but for how long? It is unclear whether the “continuing
to reside” requirement applies only to getting the revoked I-140 reinstated or
reaffirmed, or whether the individual would have to remain, waiting decades for
the priority date to become current.
The Policy Memo provides little clear guidance:
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 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.
Footnote
2 states:
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.
One
interpretation of this language from the Policy Memo is that the individual is
only required to continue to reside in the United States until the I-140 has
been reinstated or reaffirmed. The
implication therefore is that the person can then leave the United States to
wait for the priority date to become current and apply for an immigrant visa
via consular processing, although note that the Foreign Affairs Manual has not
been updated to take the provisions of INA § 204(l) into account. And
after they have waited 20 or 30 years in India (one report has estimated that the
EB-3
India wait is 70 years!), how will they get the
National Visa Center to prompt their case into active status?
Since
the H-4 spouse can no longer maintain status once his or her H-1B spouse has
died, he or she may be able to remain in the United States for 180 days past
the death of his or her spouse and take harbor in INA 245(k). Or he or she could arguably wait in the
United States until 180 days after their valid I-94 expires and then leave to
consular process. But given the
backlogs, 180 days could never be enough time, and INA § 204(l) does not protect against grounds of
ineligibility not related to the death of the spouse (so, INA 245(c) could make
an overstay spouse ineligible to adjust and if such spouse leaves to consular
process, they might trigger the 3 or 10 year bar and would need a waiver – a
waiver they could only get if they had some qualifying relative, as their
deceased spouse could not serve as that qualifying relative in this example
because he or she was not yet a lawful permanent resident or citizen).
These
individuals could try to change to another nonimmigrant status, but again the
decades they might have to wait make this seem untenable – how long can one
really remain a student? If they
do not have the appropriate qualifications for an H-1B, or keep getting unlucky
under the H-1B cap, what to do?
One could perhaps try to request deferred action on humanitarian grounds
given the humanitarian purpose behind INA § 204(l), from the Department of Homeland Security in order to avoid
accruing unlawful presence while waiting for the priority date to become
current to leave the country in order to consular process, but would DHS grant
such a request? There is no
guidance as to that issue. Clearly,
the backlog of priority dates is a missing link in the protection that INA §
204(l) was meant to provide.
USCIS
should take up the Ombudsman’s November 26, 2012 recommendations as soon as possible
and conduct notice-and-comment rulemaking to create or designate a standard
form, establish a receipt protocol, and an adjudication process that is in
compliance with the actual statute.
USCIS should stop regarding these requests as discretionary (“shall be
adjudicated”), publish instructions for applicants and petitioners and track
and monitor the processing of surviving relative requests. The loss of a family member is enough
of a burden, USCIS should not double down on that burden by failing to institute
clear procedures to give families comfort and clarity as to their ability to
have their applications adjudicated, and feel safe to travel and work. Moreover, one would hope that the
backlogs will be cleared up but in the interim, the problem posed by backlogs
in the surviving spouse context should be taken up by USCIS or even by
Congress.
