Immigration relief for families is in many cases tied to a petitioning family member (a principal), or in other instances, it is tied to being related to the beneficiary of a family based, employment-based, or humanitarian application (a derivative beneficiary). Since your relief is tied to another person, if a situation arises with that other person, your eligibility for relief also changes. One instance where this arises is when either the principal of a family based petition, or the principal beneficiary of another type of petition where your relief is tied to that person, dies.

It is much easier to understand this by looking at an example. If your parent is a U.S. citizen, your parent (the principal) can submit an I-130 petition for you (the beneficiary). However, if your parent dies before the I-130 petition is approved, then that petition is automatically cancelled or revoked.

Another example would be an employment based application. Say that you are married to someone whose employer is sponsoring him for a green card in the EB3 category for skilled workers through an I-140 petition. You are also eligible for a green card based on your marriage to your spouse (the beneficiary). You are considered the derivative beneficiary since you derive or get your benefits from your spouse. If your spouse dies before the employment based petition is approved, then that petition is revoked and you can no longer obtain any benefits from it.

If you are already living abroad, this situation would certainly have an effect on you; however, the consequences could be much more detrimental if you are already living in the U.S. and your route to obtaining legal permanent residence is suddenly terminated by the death of your relative. For this reason, there is relief for surviving relatives, also known as 204(l) relief.

In order to request 204(l) relief, you have to demonstrate to the USCIS that you were residing in the U.S. at the time your relative passed away. Residing in the U.S. does not just mean that you were visiting here; rather, you must show that your principal residence was in the United States. As long as you can demonstrate that the U.S. is your actual place of residence, you can request 204(l) relief, even if you were outside the country when your relative died.

204(l) relief is discretionary, meaning that the USCIS will not grant it if doing so would not be in the public interest. While it is a balancing test, the USCIS understand that people requesting 204(l) relief are faced with sudden, unfortunate circumstances, and will veer towards granting relief unless negative equities exist, for example any criminal convictions

204(l) relief is available to the following categories of individuals:

  • Beneficiaries and Derivative Beneficiaries of Family Petitions (I-130)
  • Derivative Beneficiaries of Employment Based Petitions (I-140)
  • Derivative Beneficiaries of Asylum Applications
  • Derivative T and U visa holder who have not yet adjusted status; if you have not yet been granted T or U derivative status and the principal dies, you are not eligible for 204(l) relief

While 204(l) relief is similar in many ways to humanitarian reinstatement, it is more expansive in many ways since the underlying I-130 petition does not need to have already been approved, it applies to a broader range of immigration applications, and there is not a requirement to meet certain humanitarian factors. On the other hand, 204(l) does not apply to anyone who was not residing in the United States at the time of his or her relative’s death; if you were living abroad and your relative died before you could apply for your green card through a family based petition, your only option would be humanitarian reinstatement.

Click here to find out more about Humanitarian Reinstatement. (A similar situation when a relative dies when you are waiting for a Green Card to become current).

To find out more about the new rules or other investor visas, contact Scott Legal, P.C.

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Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at info@legalservicesincorporated.com.


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