For a case denied before October 28, 2009 USCIS policy is that an alien may file, with the proper filing fee, an untimely motion to reopen a petition, adjustment application, or waiver application, if new section 204(l) would now allow approval of a still-pending petition or application.

For many years, USCIS had taken the position that the law did not permit the beneficiary of a visa petition to obtain approval of the petition if the petitioner died while the petition remained pending. See Matter of Sano, 19 I&N Dec. 299 (BIA 1985); Matter of Varela, 13 I&N Dec. 453 (BIA 1970).
New section 204(l) of the Act changes this governing law with respect to an alien who is seeking an immigration benefit through a deceased “qualifying relative.” Section 204(l) permits the approval of a visa petition or refugee/asylee relative petition, as well as any adjustment application and related application, if the alien seeking the benefit:

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; and

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 both the principal beneficiary and any derivative beneficiaries;

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

The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative Petition;

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

A derivative asylee under section 208(b)(3) of the Act.

Section 568(d) of Public Law 111-83 does not expressly define the “qualifying relative.” From the list of aliens to whom the new section 204(l) applies, however, USCIS infers that “qualifying relative” means an individual who, immediately before death, was:

The petitioner in a family-based immigrant visa petition under section 201(b)(2)(A)(i) or 203(a) of the Act;

The principal beneficiary in a family-based visa petition case under section 201(b)(2)(A)(i) or 203(a) of the Act;

The principal beneficiary in an employment-based visa petition case under section 203(b) of the Act;

The petitioner in a refugee/asylee relative petition under section 207 or 208 of the Act;

The principal alien admitted as a T or U nonimmigrant; or

The principal asylee, who was granted asylum under 208 of the Act.