In American immigration, a common question is about what happens if the U.S. petitioner who sponsored a family member for a green card passes away before the process is completed, and while this can be a daunting situation there are ways for immigrants to continue their journey toward obtaining a green card. This guide will help you understand the options available and the steps you can take.
Impact of the U.S. Petitioner’s Death
When this happens, several factors affect the immigration process:
Progress in the Immigration Process:
If the process hasn’t begun, it faces significant hurdles. However, if certain milestones have been reached, there might be options to continue.
U.S. Citizen vs. Permanent Resident Sponsorship:
The rules differ depending on whether the sponsor is a U.S. citizen or a lawful permanent resident. This distinction influences the immigrant’s chances of proceeding.
Marital Status and Substitute Financial Sponsorship:
The immigrant’s marital status and the ability to find a substitute financial sponsor can open up alternative pathways.
Progress
The immigration journey typically starts with filing Form I-130, the “Petition for Alien Relative,” with U.S. Citizenship and Immigration Services (USCIS). If the petitioner dies before this step, the case often stalls. However, if Form I-130 is already approved, the process might be able to continue under certain conditions.
Special Rules for Spouses of U.S. Citizens
If the spouse hasn’t remarried, they can notify USCIS to convert the filed or approved I-130 into a “self-petition.” If no I-130 exists, they can submit an I-360 self-petition.
Family-Based Categories and Revocation
In cases involving other family categories with an approved I-130, the immigrant’s family can request to undo the revocation, potentially allowing the immigration process to continue.
Special Rules for Widow(er)s of U.S. Citizens
Widows or widowers of U.S. citizens, and their unmarried children under 21, can apply for immigrant benefits based on their marriage. This option is available within two years of the spouse’s death.
The Role of USCIS Form I-360
If the U.S. citizen spouse filed an I-130 before their death, the immigrant can proceed with the green card application as USCIS will convert the I-130 to an I-360 petition. If no I-130 was filed, the immigrant needs to file a self-petition using Form I-360, which can be done concurrently with Form I-485 for adjustment of status if eligible.
Humanitarian Reinstatement and Financial Sponsorship
For immigrants not in the spouse category or without an approved I-130, “humanitarian reinstatement” might be an option, which requires a substitute financial sponsor.
Finding a Substitute Financial Sponsor
The substitute sponsor must be at least 18 years old, a U.S. citizen or lawful permanent resident, and related to the immigrant in specific ways and they must complete Form I-864, demonstrating that their income meets U.S. Poverty Guidelines.
Requesting Reinstatement
Once a substitute sponsor is secured, the immigrant should send a letter to USCIS requesting reinstatement, including necessary documentation such as:
- Form I-864 completed by the substitute sponsor
- Financial documentation proving compliance with U.S. Poverty Guidelines
- Evidence of the relationship between the immigrant and substitute sponsor
- Proof of the substitute sponsor’s status
- USCIS approval notice for the I-130
- The death certificate of the initial sponsor
- Compelling reasons for USCIS to favorably exercise discretion
Seeking Legal Assistance
Navigating immigration laws, especially after a petitioner’s death, can be complex. Legal counsel can evaluate your situation, assist with paperwork, and present compelling arguments to support your case.
Section 204(l) Relief
Under Section 204(l) of the Immigration and Nationality Act, immigrating family members can request their cases to proceed if certain criteria are met, including residency in the U.S. at the time of the petitioner’s death.
Backup Plans
To minimize the impact of a petitioner’s death, consider having multiple petitioners, especially in cases involving U.S. citizen parents petitioning for their child.
When a U.S. petitioner passes away during the immigration process, there are still options and strategies to continue the journey toward a green card. Understanding the process, seeking legal guidance, and exploring available pathways are crucial.
For personalized guidance, consult an experienced immigration attorney who can provide expert advice tailored to your needs. Your dream of obtaining a green card and building a new life in the U.S. is worth pursuing with determination and resilience. Remember, knowledge and professional support are your strongest allies. Start your journey today with the right information and guidance.
