Survivor Benefits: A New Option after the Death of a "Qualifying Relative"

In 2010, Congress passed two new laws. One law was to help widows of American citizens and the other law was to help visa applicants if the “qualifying relative” dies after the petition was approved by CIS. Information for widows was in the news quite a lot, but there was very little public information available for applicants whose “qualifying relative” had died. On September 11, 2011, CIS finally released more information about Survivor Benefits under INA 204(l).
 
In the past, only widows and widowers of U.S. citizens could continue to apply for a Green Card after the death of their petitioning spouse. INA §204(l) expands eligibility for immigration survivor benefits to other categories of relatives, including derivative beneficiaries in family-based preferences.
 
This new law is aimed primarily at visa applicants who are already in the US. At the moment, it is uncertain how easy it will be to apply the law to those still living in Vietnam. No one in Vietnam has applied for a visa under the new law yet. However, for applicants still in Vietnam, this new law replaces the requirements of the Family Sponsor Act and makes it much easier to become eligible for visa processing after the death of “qualifying relative”.
 CIS says that “In certain circumstances, a survivor residing outside of the U.S. at the time of the qualifying relative’s death, might be allowed to request “humanitarian reinstatement” under 8 C.F.R. § 205.1(a)(3)(i)(C)(2) if he/she was the beneficiary of an approved petition before the death of the “qualifying relative”. Those seeking immigration survivor benefits under section 204(l) are still required to provide an Affidavit of Support (I-864), but one may be obtained from a substitute sponsor.
 CIS understands “qualifying relative” can mean EITHER the Petitioner OR the Principal Applicant. In other words, if the Principal Applicant was married or was a single parent, and he or she dies, then the surviving spouse and surviving minor children of the Principal Applicant would still be eligible to apply for immigrant visas.
 For applicants still living in Vietnam, Section 204(l) of the Act applies to any immigrant visa petition approved on or after October 28, 2009, even if the petition or application was filed before that date. 
 To request humanitarian reinstatement of an approved petition, or of a petition revoked because of the death of the “qualifying relative”, the beneficiary should send a written request for reinstatement to the USCIS service center or field office that approved the petition.
 The written request must include a copy of the approval notice for the revoked petition, the death certificate of the petitioner (or other qualifying relative). CIS also needs a Form I-864 from a substitute sponsor and proof of the substitute sponsor’s relationship to the beneficiary.
Although family ties in the United States are a major consideration in a “humanitarian reinstatement” request, there is no strict requirement for the alien beneficiary to show extreme hardship to the alien, or to relatives already living in the United States, in order for the approval to be reinstated after the death of the “qualifying relative”.
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Q.1. How does a visa applicant apply for reinstatement under section 204(l) if their petition was already approved before the death of their qualifying relative?
 
A.1. CIS recommends that persons with an approved petition should seek reinstatement by writing a letter to the USCIS office that approved the petition, not where the petition was filed. The letter should specify the applicant is seeking 204(l) reinstatement.
 
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Q.2. When a survivor's petition is reinstated, does it retain the priority date of the original I-130 petition?
 
A.2. An applicant's reinstated petition will retain the original priority date. INA §204(l) requires USCIS to proceed with the applications as if the qualifying relative hasn't died.
 
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Q.3. The Child Status Protection Act (CSPA) says applicants need to apply for a visa within one year after the petition becomes current. If a CSPA applicant applies for reinstatement under section 204(l), does the one year begin when the visa first became available, or from the date that the petition was reinstated?
 
A.3. CIS says that an individual covered by CSPA before their qualifying relative's death will still be eligible for protection. An applicant who was unable to file for permanent residence because of the death of a qualifying relative will have one year from the date of petition reinstatement to satisfy the one year requirement during which they must seek to apply for a visa.
 
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