How Section 204(l) Protects Widow(er)s and Children During the Immigration Process

“The care of human life and happiness, and not their destruction, is the first and only object of good government.” – Thomas Jefferson

Law and government are intertwined, and as many of our clients know, in the area of immigration the government often hinders more than helps. As attorneys at LPY Law Group, we are continually inspired by our clients and their unique stories as they pursue immigration. Despite the challenges of the U.S. immigration system, they make countless contributions to society and immeasurable sacrifices to be at the forefront of their fields—all while providing the very best for their families.

One such client whose story we wish to share reminds us not only of the value of applying specialized legal knowledge to our cases but also that the care of human life and happiness is the first and only object of good legal service.

A recent Ph.D. graduate, one of our clients who desired to remain in the United States aptly filed a National Interest Waiver petition, which was approved without issue. After marrying, he and his wife had a baby a few years later. They purchased a home, established their careers, and raised their daughter—on their way to the American dream. When the Visa Bulletin became current, they filed their I-485 applications, and when the Visa Bulletin retrogressed, we waited for it to become current again. Their story is the story of so many clients.

The similarities, however, ended with an unexpected diagnosis.

We still remember the phone call we received a week before Christmas one year ago. Our client’s wife told us that her husband had terminal cancer. Doctors at one of the best cancer institutes in the world had given up. Our clients were making one last effort to return to their home country to see if doctors there could provide any hope and, if not, for him to see his motherland one last time. His wife asked what this would mean for their pending I-485 applications if their prayers could not be answered.

We told her not to give up hope, that they should concentrate on getting him well, and we would find a way to get the application approved.

Sadly, when she returned a little more than a month later, we learned that her husband had been laid to rest in his home country. Now what? She was scared and uncertain. Her future and her daughter’s future were dependent upon her husband’s approved NIW I-140 petition and his pending I-485 applications because he was the principal applicant. Now that he was gone, would she have to forgo her career in the United States, give up everything they had planned together, and uproot her daughter because of government bureaucracy?

No, there is hope, we insisted.

A little known section of the Immigration and Nationality Act passed in 2009—INA § 204(l)—would allow her—the surviving spouse and derivative beneficiary of the approved I-140 petition and pending I-485 application—to remain in the United States and would allow the USCIS to continue processing her I-485 application and to approve the case.

Prior to the passage of this law, spouses faced the “widow penalty,” where the pending petition or application would be denied automatically if the U.S. citizen petitioner died before the case was adjudicated. Congress passed the new law to provide a more humane solution for families that had suffered the ultimate loss and extended the benefits to surviving relatives of lawful permanent residents, beneficiaries of employment-based immigrant petitions, and other types of cases. Our client would benefit from this humanitarian solution.

We submitted the Section 204(l) request to the USCIS. A few months later, the USCIS acknowledged withdrawal of her husband’s I-485 application. When the priority date for the I-485 application became current again, we sent a reminder to the USCIS to process her case. On the fourth day of the Lunar New Year, the USCIS approved her I-485 application. She received her green card last week.

The joy that she expressed in her e-mail to us warmed our hearts. We were similarly elated with the approval. This case and her story reminded us that, as attorneys, we do not merely process letters, documents, and petitions for our clients; rather, we also have the capability to provide hope and confidence through one of the most important processes in their lives. Lawful permanent resident status gives people a sense of security for a more certain future; it opens the doors to limitless opportunities; and it allows them to realize the American dream.

Beyond the paperwork, there must be a human touch. The care and happiness of our clients is the first and only object of LPY Law Group.