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Approval of petitions after death of relative

J. G. Azarcon, Esq. By: J. G. Azarcon, Esq.

In the past, if the petitioner dies while the visa petition is pending, the beneficiary would not be entitled to seek approval of the petition. The law changed with the amendment of Sec. 204(l) of the Immigration Act in 2009.

Under current law, an alien seeking immigration benefit through a deceased qualifying relative may obtain approval of a visa petition or adjustment application and refugee/asylee relative petition if the alien meets the following illegibility requirements:

Resided in the United States when the qualifying relative died;

Continues to reside in the United States on the date of the decision on the pending petition or application;

Is at least one of the following:

the beneficiary of a pending or approved immediate relative visa petition;

the beneficiary of a pending or approved family-based visa petition, including beneficiary and any derivative beneficiaries;

any derivative beneficiary of a pending or approved employment-based visa-petition;

the beneficiary of appending or approved Form I-730, Refugee/Asylee Relative Petition;

an alien admitted as a derivative “T” or “U” nonimmigrant; or

a derivative asylee.

The Immigration Service defines “qualifying relative” as an individual who immediately before death, was:

the petitioner or principal beneficiary in a family-based petition;

the principal beneficiary in an employment-based visa petition;

the petitioner in a refugee/asylee relative petition;

the principal alien admitted as a T or U nonimmigrant;

the principal asylee who was granted asylum.

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