There are circumstances under which an immigrant can obtain a green card (U.S. lawful permanent residence) even if the petitioner/sponsor dies before completion of the application process. Exactly what will happen depends on how far along in the process the case was when the sponsor died, whether the immigrant and petitioner were married, whether the immigrant can find a substitute financial sponsor, and other factors.
How Far Along in the Process Immigrant Must Be to Overcome Petitioner's Death
When you first petitioned for your immigrating relative, you no doubt filed a Petition for Alien Relative, or Form I-130, with U.S. Citizenship and Immigration Services (USCIS).
If you were to pass away before this I-130 was approved -- in other words, after you had gotten no more than a receipt notice back from USCIS -- your immigrant relative's case would be revoked, without the possibility of being reinstated.
If you were to die after the I-130 had been approved; but before your family member has completed the next phase of the application process (the immigrant filing for a green card either through the process known as adjustment of status, in the U.S., or through consular processing overseas); USCIS could revoke the I-130 petition based upon the death. Nevertheless, your relative might still be able to immigrate, either as the widow(er) of a U.S. citizen (if you are one) or by requesting something called reinstatement. Both possibilities are discussed below.
Special Rules for Widow(er)s of U.S. Citizens
The widow or widower of a U.S. citizen (and unmarried children under 21) can file for immigrant benefits on the basis of the marriage. The widow(ed) immigrant is eligible to apply for a green card within two years of the spouse's death, if the couple married in good faith (not to get the immigrant a green card), was not legally separated at the time of the death, and the immigrant has not remarried.
The exact procedures for this depend upon whether the U.S. citizen spouse got as far as filing an I-130 visa petition on the immigrant's behalf before the death. If so, the immigrant can proceed with the green card application, but will need to notify USCIS of the U.S. citizen spouse's death. (Then USCIS will convert the I-130 to an I-360 petition, described next.)
If the U.S. citizen did not get as far as filing an I-130 petition, the immigrant will need to file a self-petition on USCIS Form I-360; which, if the immigrant is in the U.S. and eligible to file for adjustment of status, can be done concurrently with the Form I-485 and other adjustment of status paperwork (minus the Form I-864 Affidavit of Support usually required in marriage-based cases, but not required of widow(er)s of U.S. citizens).
If the immigrant is overseas, or not eligible to adjust status in the U.S., then he or she would use the procedure known as consular processing.
If filing an I-360, the immigrant will need to include a copy of the couple's marriage certificate, proof of the spouse's U.S. citizenship, and a copy of the death certificate, as well as the filing fee.
Even if the I-130 was already filed, the immigrant must notify USCIS within two years of the spouse's death and include the above documents except for the petition form and filing fee.
Reinstatement, Step One: Finding a Substitute Financial Sponsor
Assuming the immigrating relative is not your spouse, his or her main possible remedy upon your death would be to pursue something called "reinstatement." But this is possible only if the immigrant can find a substitute financial sponsor, so it would be worth his or her looking into this first.
Here's some background: As part of the green card application, an immigrant's family petitioner must complete Form I-864, Affidavit of Support Under Section 213A of the Act, as well as provide financial documentation, such as pay statements, tax returns, and a letter from an employer. You may have already taken care of this. If so, you may remember that you were required to show that your income/asset levels meet at least 125% of the U.S. Poverty Guidelines for the number of people in your household plus the immigrant(s), as shown on Form I-864P.
By signing Form I-864, you are promising to financially support your immigrant relative(s) in the U. S., and demonstrating that they will not become a burden to the U.S. government.
This financial sponsorship is an important aspect of serving as an immigrant's petitioner. If you die, USCIS would expect your immigrant relative to come up with a substitute sponsor to take on this role, in order for the green card application to continue.
To qualify as a substitute sponsor, the person must be at least 18 years of age, a U.S. citizen or lawful permanent resident, and related to the immigrant as either a spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild, or legal guardian.
The substitute sponsor would be required to meet the same income requirements (from the Poverty Guidelines) as the original sponsor, and provide the same types of financial documentation. Further, the substitute sponsor would need to indicate and provide evidence of how he or she is related to the immigrant relative.
The substitute sponsor will be financially obligated, if needed, to the immigrant relative until he or she becomes a U.S. citizen, dies, or departs the U.S. permanently. A divorce does not cancel the substitute sponsor's obligations to the immigrant relative.
After Finding a Substitute Sponsor; What Would the Immigrant Need to Do Next?
Once your immigrant relative has found a substitute sponsor and the sponsor has completed Form I-864 and provided the needed documentation, your immigrant relative would need to write a letter to USCIS stating a wish to have the case reinstated after it was revoked due to death of the initial sponsor. Along with the letter the intending immigrant should attach the following:
- Form I-864, filled out and signed by the substitute sponsor
- financial documentation from the substitute sponsor showing that his or her income/assets meet the U.S. Poverty Guidelines
- evidence of how the substitute sponsor is related to the immigrating relative
- copy of identification showing the substitute sponsor's status as a U.S. citizen or permanent resident, such as a U.S. birth certificate, passport, or green card
- photocopy of the USCIS approval notice for immigrant's Form I-130
- death certificate of the initial sponsor.
The immigrant relative should also state the reasons for wishing to have the application reinstated, such as hardship due to being separated from family or children in the United States or evidencing ties to the United States.
The application for reinstatement should be mailed to the office where your I-130 petition was filed, which will be indicated on the bottom of your I-130 approval notice. USCIS will add the application for reinstatement to your I-130 petition. There is no fee required for this request.
If Substitute Sponsor Cannot Meet the Poverty Guidelines
If an immigrant relative's substitute sponsor cannot meet the income requirements, the person may be able to team up with a joint sponsor. The joint sponsor must be at least 18 years of age, living in the U.S., and willing to be jointly liable for the immigrant's financial support.
The joint sponsor, unlike the substitute sponsor, does not have to be related to the immigrant. The joint sponsor must complete Form I-864 as well, provide the same documentation as above, and be able to meet the income requirements per the Poverty Guidelines.
Backup Plan: An Additional Petitioner
In order to avoid having to meet the requirements for reinstatement, it might help the immigrant to have more than one petitioner file an I-130 petition on his or her behalf. For instance, both U.S. citizen parents can petition for their child. This provides a backup petition in case of death.