The loss of a loved one is one of the most difficult experiences in life. When the person lost is also the anchor person for the family's immigration case, the impact is even more drastic. Many foreign families depend on the principal applicant's immigration petition, typically filed by a U.S. employer. When the principal applicant of an I-140 visa petition passes away, the family loses not only a major financial support but also the possibility of applying for U.S. permanent residency. Fortunately, Section 204(l) of the Immigration Act provides relief to certain surviving beneficiaries of immigration petitions, including family members of an I-140 petitioner who dies before their adjustment of status is approved. This provision allows certain qualified beneficiaries to continue with the immigration process despite the petitioner’s death, rather than automatically having their case denied.
Who Can Benefit from INA § 204(l)?
Surviving family members of an employment-based petitioner (I-140) can still obtain a green card if they meet the certain conditions. Specifically, the family members must be residing in the U.S. when the principal beneficiary (foreign worker) dies. Residing here means actual, continuous physical presence. Further, they must also continue to reside in the U.S. in order not to abandon their residency. Eligible surviving beneficiaries include the derivative beneficiaries (spouse and children of the foreign worker) if the principal beneficiary dies before the family is able to adjust status.
Further, this law also applies if the U.S. employer (petitioner) dies. This applies when the petitioner is an individual. In that case, the principal beneficiary (foreign worker) must also establish residency in the U.S. Since most employment petitions are filed by legal entities such as corporations, limited liability companies, etc., this scenario is uncommon.
How does INA § 204(l) Works for I-140 Petitions
Employer Dies Before I-140 Approval: If an employer files an I-140 petition for a foreign worker, but the employer dies before the I-140 is adjudicated, USCIS may still approve the petition under INA § 204(l), provided the beneficiary meets the residency requirements.
Foreign Worker Dies Before Adjustment of Status: If the principal beneficiary (foreign worker) dies before adjusting status, INA § 204(l) allows their spouse and children (derivative beneficiaries) to continue with the process and apply for a green card if they were in the U.S. at the time of death.
Practical Considerations
There is no formal application mechanism for survivors to apply for Section 204(l) benefits. Legally speaking, death of the petitioner (employer) or the principal beneficiary (foreign worker) automatically results in the revocation of an approval I-140 petition, or cancels the petition if its still pending. Beneficiaries must notify USCIS of the petitioner's death and affirmatively request relief under INA § 204(l). Further, it is important to note that Section 204(l) relief is discretionary. In other words, the government could deny relief if there are negative factors in the case.
Other Options
INA § 204(l) provides a critical lifeline for surviving family members of employment-based I-140 petitioners, ensuring that their path to a green card is not automatically terminated due to the death of the employer or the principal beneficiary. However, approval is discretionary, and beneficiaries must meet the residency and procedural requirements to benefit from this relief. If INA § 204(l) does not apply (e.g., the beneficiary was not in the U.S. at the time of death), then survivors should consider other options. For example, humanitarian reinstatement under the regulation may be an alternative for certain family-based petitions (but not I-140 cases).
(Immigration laws and policies change regularly. If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)
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