Basic Eligibility for Section 204(l) Relief for Surviving Relatives
You may be eligible to seek relief if you are a:
- Principal or derivative beneficiary of Form I-130, Petition for Alien Relative (regardless of whether the petitioner was a U.S. citizen or lawful permanent resident), and the petitioner died;
- Derivative beneficiary of Form I-130, Petition for Alien Relative (regardless of whether the petitioner was a U.S. citizen or lawful permanent resident), and the principal beneficiary died;
- Derivative beneficiary of Form I-140, Immigrant Petition for Alien Worker, and the principal beneficiary died;
- Beneficiary of a pending Form I-730, Refugee/Asylee Relative Petition, and the petitioner died;
- T or U nonimmigrant visa holder in a derivative classification (T-2, T-3, T-4, T-5, U-2, U-3, U-4, U-5) and the principal (T-1 or U-1) visa holder died; or
- Derivative asylee (AS-2 or AS-3) and the principal asylee (AS-1) died.
- Derivative asylee (AS-2 or AS-3) and the principal asylee (AS-1) died;
- Derivative beneficiary for VAWA classification (Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant) and the VAWA self-petitioner died;
- Derivative beneficiary of Form I-485, Application to Register Permanent Residence or Adjust Status, filed by a battered spouse or child under the Cuban Adjustment Act or the Haitian Refugee Immigrant Fairness Act on and the principal applicant dies; or
- Conditional permanent resident (CPR) child of a CPR filing a waiver of the joint filing requirement for Form I-751, Petition to Remove Conditions on Residence, based on battery or extreme cruelty, and the CPR dies.
To be eligible for relief under INA 204(l), at least one beneficiary must have been residing in the United States when the qualifying relative died, and the same beneficiary continues to reside in the United States at the time of seeking relief. The Department of Homeland Security (DHS) may decline to provide relief if it determines, in its discretion, that doing so would not be in the public interest.
Residence for the Purpose of Section 204(l) Relief Eligibility
- You “reside” in the United States if your “residence” is in the United States.
- Your residence is your primary home or your “principal actual dwelling place in fact, without regard to intent.” (See section 101(a)(33) of the Act.)
If you can show that your primary home when your relative died--where you were actually living--was in the United States, and it is still in the United States, you may benefit from section 204(l) relief.
Certain petitions can have more than one beneficiary. For example, the spouse or child(ren) of the principal beneficiary may be eligible to immigrate along with the principal beneficiary. As long as at least one of the beneficiaries was “residing” in the United States, and is still “residing” here, all of the beneficiaries can benefit from section 204(l) relief. (Note: Unlike certain other petitions, Form I-730 will have only one beneficiary.)
Section 204(l) relief eligibility requires that someone must have “resided” here; it does not require physical presence in the United States when the relative died. Residence is not interrupted by incidental travel. Events like a vacation, visiting family, or travel for work do not affect your eligibility for section 204(l) relief.
Favorable Exercise of Discretion
Relief under section 204(l) is not an “entitlement,” but a matter that Congress has entrusted to DHS discretion. USCIS has discretion to deny relief under section 204(l) if USCIS finds that granting relief under section 204(l) would not be in the public interest. As with other forms of discretionary relief, exercising discretion means weighing positive factors against negative factors to make a decision. In addition to meeting the basic requirements for section 204(l) relief, your request must warrant a favorable exercise of discretion, meaning that the “pros” in granting your request outweigh the “cons.” However, USCIS knows that section 204(l) is intended to help people who were put in an unfortunate position because of a sad event that was beyond their control. The intent of the law is a very strong “pro” factor that weighs favorably in the exercise of discretion.
Pending or Approved Petitions and Applications
You may benefit from section 204(l) relief if your relative died:
- While the petition (for example, Forms I-130 or I-140), or Form I-730 was pending;
- After the petition (for example, Forms I-130 or I-140) was approved;
- While your Form I-485, Application to Register Permanent Residence or Adjust Status, was pending;
- While you were in T or U nonimmigrant status, but before you filed Form I-485;
- While you were in T or U nonimmigrant status, after you filed Form I-485;
- While you were in asylee status, before you filed Form I-485; or
- While you were in asylee status, after you filed Form I-485.
The requirements for section 204(l) relief are the same, regardless of whether the petition or application was pending or approved when your relative died. If a case is pending or approved, you can make the request to USCIS. The information we need to process your request is the same. The way we process requests for relief is slightly different, however. The process for submitting a request for section 204(l) relief is explained below.
Petition or Application for Adjustment of Status is Pending
If you were a beneficiary of a pending petition (including Form I-730) or application for adjustment of status when your relative died, USCIS may continue processing your petition or application if you request and are granted section 204(l) relief. You need to make a written request to have USCIS apply section 204(l) to your case. See How to Request Section 204(l) Relief for information on how to request section 204(l) relief.
Petition was Approved
If your immigrant petition was already approved before your relative died, the approval is automatically revoked by function of law (see 8 CFR 205.1(a)(3)(i)(B) and (C)). Section 204(l) can still apply to a case that was revoked, so the revocation does not mean that your case is over. Rather, “revocation” and “reinstatement” simply provide a procedural mechanism that lets USCIS verify whether section 204(l) applies to your case and, if it does, to decide whether to exercise discretion favorably.
When you request and are granted section 204(l) relief, USCIS reinstates the approval of the petition, so that you can continue the process of obtaining lawful permanent residence (Green Card). This is a technical difference because of how the law is written and other laws and regulations that existed before section 204(l) was enacted, but the outcome is the same: when section 204(l) relief is requested and granted, you can continue the immigration process. Processing times may vary, depending on where your file is located and other factors. See How to Request Section 204(l) Relief for information on how to request section 204(l) relief.
How to Request Section 204(l) Relief
There is no form or fee to ask for section 204(l) relief. You need to make a written request with supporting evidence of eligibility to a USCIS office.
- If your relative dies while the petition is pending, you should specifically ask USCIS “to approve the petition under section 204(l),” despite your relative’s death.
- If your relative dies after the petition (for example, Forms I-130 or I-140) is approved, you should specifically ask USCIS “to reinstate the approval of the petition under section 204(l).”
- If your relative dies while Form I-730 petition is pending, you should specifically ask the USCIS office that has your petition “to approve the petition under section 204(l),” despite your relative’s death.
When you request section 204(l) relief, you must include:
- Your name, your deceased relative’s name, and the names of any other beneficiaries on the same petition;
- Your alien registration number (A number), if you have one;
- Your deceased relative’s A number, if he or she had one;
- The A number for any other beneficiaries, if they have one;
- The receipt number on your petition or application;
- Your relative’s death certificate (a certified translation is required, if not in English);
- Proof of your residence (examples include, but are not limited to: lease/mortgage, utility bills, pay stubs, school records, etc.) at the time of your relative’s death up until the present time (note: only one of the beneficiaries on a petition with derivatives needs to meet the residence requirement); and
- Form I-864, Affidavit of Support Under Section 213A of the INA, from a substitute sponsor.
See the chart below to learn where to send the request:
|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. 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 DOS website 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 for waiver purposes is also the relative that died, you can still apply for the waiver. We 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). If your deceased qualifying 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.