|Your visa petition (e.g., Form I-130 or Form I-140) or Form I-730 was pending when your relative died and at least one beneficiary, or derivative beneficiary, resided in the United States when your relative died and continues to reside in the United States||Send your written request to the USCIS office currently processing your case (the address is on the receipt notice (Form I-797) or, if USCIS transferred the case to a different office, send your request to the new office listed on the transfer notice)|
|Your petition was already approved when your relative died AND you are not ready and/or able to file Form I-485 yet||Send your written request to the office that approved your petition|
|Your petition was already approved when your relative died AND you have a visa available and are ready to file Form I-485||Send your written request with your Form I-485 package per Instructions for Form I-485|
|You have already filed Form I-485 (whether or not your petition was pending or already approved)||Send your written request to the USCIS office having jurisdiction over your application|
|You are in T or U nonimmigrant status||Send your written request to the Vermont Service Center|
|You are in asylee status||Send the written request with your Form I-485 package when you file for adjustment of status, if applicable, per Instructions for Form I-485|
Other Requirements to Benefit from Section 204(l) Relief
Form I-864, Affidavit of Support
Most immediate relatives and family-based immigrants are required to have an affidavit of support, Form I-864. In some cases, your work history or other factors may make Form I-864 unnecessary (see factors listed in 8 CFR 213a.2(a)(2)(ii)). In either case, your relative’s death does not change the way that the Form I-864 requirement applies to you. If you were required to have Form I-864 and the petitioner died, you must have either a new Form I-864 from a substitute sponsor or Form I-864W. To be a substitute sponsor, an individual must be a U.S. citizen, national, or lawful permanent resident; be at least 18 years old; and must be your spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.
If you are the derivative beneficiary of an employment-based immigrant petition, you only need a substitute sponsor if a U.S. citizen or lawful permanent resident relative of yours has a significant ownership interest, which is 5% or more, in the petitioning company.
T and U nonimmigrant visa holders, asylees, and refugees do not need Form I-864.
Ineligible to Adjust Status
You can still be eligible for section 204(l) relief even if you need to travel abroad to apply for a visa at a U.S. Consulate. Department of State (DOS) consulate officers cannot grant section 204(l) relief – only USCIS can. If you know that you will need to apply for an immigrant visa at a U.S. Consulate, you should request section 204(l) relief from USCIS and notify the Department of State that you are requesting this relief as soon as possible, to avoid or reduce delays in processing. (See www.state.gov for information regarding contacting DOS.)
Waivers of Inadmissibility
Many inadmissibility waivers require “extreme hardship to a qualifying relative” as well as a favorable exercise of discretion. If your qualifying relative is also the relative that died, you can still apply for the waiver. USCIS will assume extreme hardship to your qualifying deceased relative, but your case still must warrant a favorable exercise of discretion (the positive factors for granting the waiver must outweigh the negative factors). (Note: If your deceased relative is not a qualifying relative for purposes of the waiver, you still need a qualifying relative to be eligible for the waiver.)
Other than assuming the existence of extreme hardship, you must meet all other requirements for the granting of a waiver of inadmissibility. For example, you must still be seeking to immigrate as an “immediate relative” in order to apply for Form I-601A, Application for Provisional Unlawful Presence Waiver, under 8 CFR 212.7(e).
Relationship to Humanitarian Reinstatement under DHS Regulations
Even before Congress enacted section 204(l), DHS regulations provided discretion to reinstate approval of family-based petitions that were automatically revoked because of the petitioner’s death. The DHS regulation is 8 CFR 205.1(a)(3)(i)(C)(2). If you believe that this regulation may also apply to you, you should submit a single written request asking USCIS for relief under both section 204(l) and the humanitarian reinstatement regulation. See Humanitarian Reinstatement for more information on this form of relief.