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, while this can be a daunting situation there are ways for immigrants to continue their journey toward obtaining a green card. This sponsoring immigrant green card guide will help you understand the options available and the steps you can take.
Impact of the U.S. Petitioner’s Death
The death of a U.S. petitioner can significantly impact the immigration process for beneficiaries seeking green cards. Here’s a detailed overview of the implications and available options:
Effects of the Petitioner’s Death
- If the Petitioner Dies Before Petition Approval:
- If the petitioner dies before the approval of Form I-130 (the family petition), the process generally becomes more complicated. The beneficiaries may need to restart their immigration process unless they qualify under specific provisions, such as being a spouse of a deceased U.S. citizen, which allows them to file a self-petition using Form I-360 within two years of the spouse’s death.
- If the Petitioner Dies After Petition Approval:
- If the petitioner dies after Form I-130 has been approved, beneficiaries can often continue the immigration process. They may apply for Humanitarian Reinstatement, which allows them to proceed with their application despite the petitioner’s death, provided they were residing in the U.S. at that time and meet other eligibility criteria. This option is particularly relevant for principal beneficiaries who have an approved petition.
- Derivative Beneficiaries:
- The situation is more complex for derivative beneficiaries (like children or spouses of the principal beneficiary). If the principal beneficiary dies, derivative beneficiaries typically lose their eligibility unless they are in the U.S. and can invoke Section 204(I) of the Immigration and Nationality Act, which allows them to continue their petitions if they meet certain conditions.
Available Legal Remedies
After a petitioner’s death, another eligible family member may act as a substitute financial sponsor by filing Form I-864 (Affidavit of Support). This is crucial for ensuring that the financial requirements are met for continuing the immigration process.
Humanitarian Reinstatement:
This provision allows for the reinstatement of an approved family petition that was automatically revoked due to the petitioner’s death. It is available only to principal beneficiaries and requires demonstrating compelling humanitarian factors.
Section 204(l) of the Immigration and Nationality Act:
This section permits certain beneficiaries to adjust their status based on an approved petition after the petitioner’s death, provided they were residing in the U.S. at that time and continue to do so during processing.
Substitute Sponsors:
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 on Sponsoring Immigrant Green Card, 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.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your sponsoring immigrant green card straightforward and successful. Whether you’re applying for an Adjustment of Status (AOS) or Employment-Based Visa, we handle every step—from preparing your application to gathering the required documents.
Our immigration lawyer consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process, coordinating with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need to sponsor immigrant green cards in the US. Call us today at +234 812 5505 986 to learn how we can assist you.
