If you are applying for a green card based on a family relationship, such as through a U.S. citizen or lawful permanent resident parent, child, or spouse, the last thing you probably want to think about is the possibility that your U.S. petitioner will pass away before you have finished the green card application process. Not only would this be terribly sad, but it might end your ability to obtain a U.S. green card (U.S. lawful permanent residence). There are exceptions, however, as discussed here. You might need to act quickly.
The U.S. Congress changed the immigration law back in 2009, to allow the surviving spouse of a U.S. citizen to petition for himself or herself regardless of how long they were married prior to the spouse’s death. (The old law had required the couple to have been married for a minimum of two years at the time the U.S. citizen died for the surviving spouse to self-petition.)
If you find yourself in this situation, an important deadline still applies, however. You must file your self-petition within two years of your U.S. citizen spouse’s death. For details on how to do this, see Filling Out USCIS Form I-360 Self Petition as a Widow(er) of a U.S. Citizen.
You may include your children who are under 21 years old on the I-360 self-petition. You will still have to show that you and your spouse had a bona fide marriage, and that you have not remarried.
If you are the spouse of a deceased lawful permanent resident (a green card holder), you cannot self-petition the way the spouse of a deceased U.S. citizen can. However, other “survivor benefits” found within U.S. immigration law might assist you.
If your spouse was able to file a visa petition for you (on Form I-130) before passing away, you (and your children) may be able to adjust status once your Priority Date becomes current, despite your spouse's death. If you are outside the United States, under certain conditions USCIS may grant “humanitarian reinstatement” of the visa petition and may allow you to get your immigrant visa through consular processing. (An immigrant visa becomes a green card as soon as you use it to enter the United States.)
If a non-spouse who filed a family visa petition for you dies before you get a green card, what happens next depends on where you are at the time of the death.
If you are outside the U.S., the I-130 petition is automatically revoked, and no longer a valid way to get an immigrant visa and green card. This is true even if the I-130 petition was approved by the time your petitioning relative died. This automatic revocation will happen unless you successfully ask U.S. Citizenship and Immigration Services (USCIS) to allow you to proceed based on “humanitarian reasons.” (See How to Ask for Humanitarian Reinstatement of a Relative Petition.)
In to asking for reinstatement of the petition, you will need to get someone else to sign the “Affidavit of Support” that your U.S. petitioner 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 are “residing” (see definition below) in the U.S. when your family petitioner dies, and you continued to “reside” there, USCIS will proceed with your case in the usual way (although you will have to find someone else to sign an affidavit of support as described above), and you could get the green card even though your petitioner 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 U.S. 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 as a practical and legal matter, residing unlawfully in the U.S. could cause problems when applying a green card. Also, if you have an executed deportation order, you are no longer “residing” in the United States.
Definitely consult an attorney if you have any such complications in your case. An attorney can also be very helpful in analyzing your rights as the beneficiary of a deceased family member and in preparing an application for humanitarian reinstatement.