Can I still get a green card if my petitioning relative died?

Possibilities to continue with application for lawful permanent residence despite death of petitioner.

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Question

My U.S. citizen sister filed a petition for me so that I could get a green card, but she died last month. I’ve been living in Colombia for many years waiting for an immigrant visa to become available – can I still get one?

Answer

Because you are outside the U.S., the only way for you to get an immigrant visa (green card) through your deceased sister now is to ask U.S. Citizenship and Immigration Services (USCIS) to allow you to proceed based on “humanitarian reasons.”

Normally, if the person who filed a petition for you dies before you’ve left for the U.S., the “I-130” visa petition is revoked and is no longer valid as a way to get a green card – even if the petition was approved by the time your petitioning relative died. This automatic revocation will happen unless you ask for and are granted an exception for humanitarian reasons. (See “How to Ask for Humanitarian Reinstatement of a Relative Petition.”)

(The rule is different if the petitioning relative was your U.S. citizen spouse – see “Eligibility for a Green Card as the Widow(er) of a U.S. Citizen.”)

In addition to asking for reinstatement of the petition, you will need to get someone else to sign the “affidavit of support” that your sister would have filed for you, using USCIS Form I-864. This “substitute sponsor” must be a U.S. citizen living in the U.S., over 18 years old, and related to you as a spouse, parent, legal guardian, mother-in-law, father-in-law, brother, sister, child (over 18), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild. That person must have enough in income and assets to support you as well as his or her own household (and will, on Form I-864, promise to do so, as described in “What Sponsors Should Know Before Signing Form I-864 Affidavit of Support.”

If You Had Been in the U.S.

The story would be different if you had been “residing” (see the definition below) in the U.S. when your sister died and if you continued to “reside” there. USCIS would, in that case, continue with your case in the usual way (although you would have to find someone else to sign an affidavit of support), and you could get the green card even though your sister died.

You “reside” where your principal, actual dwelling place is, no matter where you might tell someone you live. People who were out of the country temporarily when their petitioning relative died but whose home was actually in the U.S. can still prove that they were “residing” in the U.S. and take advantage of the law.

Also, “reside” does not require you to show that you were or are residing in the U.S. lawfully – although unlawfully residing in the U.S. could cause you problems when applying for immigration benefits, including adjusting your status to permanent resident. Also, if you have an executed deportation order, you are no longer “residing” in the United States. Definitely consult an attorney if you have such complications in your case. An attorney can also be very helpful in preparing an application for humanitarian reinstatement.

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