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 the U.S. petitioner's death be terribly sad, but it might end your ability to obtain a U.S. green card (U.S. lawful permanent residence).
The biggest problem is a section of U.S. immigration law saying that even if the U.S. petitioner started the process by filing an visa petition (Form I-130) and this petition was approved by U.S. Citizenship and Immigration Services (USCIS), that approval is automatically revoked if the U.S. petitioner dies. (See 8 CFR § 205.1(a)(3)(i)(B).)
There are, however, exceptions or ways to get around this problem. We'll discuss those here. Be aware that you might need to act quickly to take advantage of them.
The spouse of a U.S. citizen has the most options of anyone after the U.S. citizen petitioner dies, including filing a "self petition" or seeking an alternate form of relief under Section 204(l) of the U.S. immigration law.
Self-petition on Form I-360. No matter whether the I-130 petition has been filed with or approved by USCIS at the time of the death, if you haven't remarried and weren't divorced or legally separated from the U.S. citizen, you can potentially take advantage of a 2009 change to U.S. immigration law that allows surviving spouses of U.S. citizens to petition for themselves. (See I.N.A. § 201(b)(2)(A)(i).)
Unlike in previous versions of the law, this applies regardless of how long the couple was married prior to the spouse's death. (The old law required a minimum of two years at the time the U.S. citizen died.)
If the U.S. spouse had already filed an I-130, you would want to notify USCIS of the U.S. petitioner's death and request it to be converted to an I-360. This works whether the I-130 had already been approved or not.
If the U.S. spouse had not yet filed an I-130, then you'd need to file a self-petition within two years of your U.S. citizen spouse's death. For details, 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, that you have not remarried, and that you are not inadmissible to the United States. But you need not worry about the usual requirement of getting a financial sponsor to avoid the public charge ground of inadmissibility. Instead, you'd file Form I-864W, indicating that you qualify for an exemption.
Section 204(l) relief. If you have remarried and therefore cannot self-petition, there's another option in the Immigration and Nationality Act known as section 204(l) relief. However, it helps only relatives who are "residing" in the United States and were doing so when the U.S. petitioning relative died. And you'd need a substitute financial sponsor. See further discussion below.
If you are the foreign-born spouse or other relative of a deceased U.S. 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, depending on how far along your case got in the processing pipeline, including "humanitarian reinstatement" and section 204(l) relief.
Humanitarian reinstatement. If your U.S. petitioner was able to file a visa petition for you (on USCIS Form I-130) before passing away, and that petition was approved by USCIS before the death, you (and eventually your children) might be able to use "humanitarian reinstatement" to reactivate the petition and let your case go forward once your Priority Date becomes current. (See How to Ask for Humanitarian Reinstatement of a Relative Petition.)
If you are living in the United States, you should then be able to proceed with an adjustment of status. If living outside the United States, you would get an immigrant visa through consular processing. (An immigrant visa becomes a green card as soon as you use it to enter the United States.)
Section 204(l) relief. If USCIS had not yet approved the I-130, there's another option in the Immigration and Nationality Act known as section 204(l) relief for surviving relatives. However, it helps only relatives who are "residing" in the United States and were doing so when the U.S. petitioning relative died. "Residing" means the U.S. must have been the person's principal, actual dwelling place. 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 this law.
Also, "reside" does not require you to show that you were or are living 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.
USCIS can authorize the case to move forward if it determines, in its discretion, that doing so would be in the public interest.
There is no form to ask for section 204(l) relief. You would need to send USCIS a written request with supporting evidence of eligibility, following the instructions on its website. (When mailing such a request, add the words ""INA 204(l)" on the envelope and cover letter, to avoid USCIS confusion).
Also, you would have to find someone with financial means to sign an affidavit of support as described on your behalf (Form I-864) as a "substitute sponsor."
If at all possible, hire an attorney to help you analyze your rights as the beneficiary of a deceased family member and prepare an application for humanitarian reinstatement. These are unusual types of cases and USCIS sometimes mishandles them or takes many months to reply, and you have no rights to appeal or try again in most of the situations described above.
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