What If I Die Before the Immigrant I'm Sponsoring Gets a Green Card?

Unfortunately, the COVID pandemic has raised the possibility of U.S. petitioners passing away before their I-130 for a foreign relative is approved by USCIS; and in most cases, the immigrant relative's case would be revoked, without the possibility of being reinstated.

With the coronavirus (COVID-19) pandemic on everyone's mind, a key question is coming up for U.S. citizens and lawful permanent residents who are sponsoring family members to immigrate to the U.S.: Would the U.S. petitioner's death end the immigration process?

There are some circumstances under which U.S. immigration law allows an immigrant to obtain a green card (U.S. lawful permanent residence) even if the petitioner/sponsor dies before completing the application process. Exactly what will happen, however, depends on how far along in the process the case was when the sponsor died, whether the sponsor was a U.S. citizen, 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

If you have already started the process of petitioning for your immigrating relative, you would have 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 doing that, the case would in most cases go nowhere.

But even if this I-130 was approved by USCIS; in other words, after you had gotten a receipt notice back but nothing more, it would in most cases be revoked after your death, if your family member had not yet completed the next phase of the process (filing for a green card either through adjustment of status in the U.S., or consular processing overseas).

Nevertheless, there are exceptions and alternative ways forward, as follows:

  • If you're a U.S. citizen petitioning for your spouse, that person could, if still unmarried, notify USCIS to convert the filed or approved I-130 to a "self-petition" and continue forward, or else (if no I-130 is on file) submit an I-360.
  • If you're petitioning in some other category and filed an I-130 that was approved, your family could ask that its post-death revocation be undone and the approval "reinstated" for purposes of continuing on with the application.
  • Even in cases where a U.S. citizen spouse remarried, or another family member's I-130 was never approved, a last possibility called section 204(l) relief might allow the case to move forward.

We'll discuss these options below.

Special Rules Allowing Widow(er)s of U.S. Citizens to Self-Petition

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 widowed 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), were 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 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, if all eligibility requirements are met, 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; an I-864W would need to be submitted instead).

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. See Filling Out USCIS Form I-360 Self Petition as a Widow(er) of a U.S. Citizen for details.

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.

Humanitarian Reinstatement of Approved I-130

Assuming the immigrating relative is not your spouse, or you're not a U.S. citizen, his or her best possible remedy upon your death would be to pursue something called "humanitarian reinstatement" of the already-approved I-130. But this is possible only if the immigrant can find a substitute financial sponsor, so it would be worth looking into this first.

Reinstatement Step One: Finding a Substitute Financial Sponsor

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 might have already taken care of this. If so, you perhaps 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 the Form I-864 affidavit, you are promising to financially support your immigrant relatives 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. Thus 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. (See I.N.A. § 213A(f)(5).)

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 being related to the immigrant relative.

The substitute sponsor will be financially obligated, if needed, to the immigrant relative until the immigrant 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.

Reinstatement Step 2: After Finding a Substitute Sponsor, What Should Immigrant Do?

Once your immigrant relative has found a substitute sponsor and that person 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. The letter will need to provide basic information including the prospective immigrant's and deceased U.S. petitioner's name, and Alien Registration Numbers (A-Numbers) if any, as well as the I-130 receipt number.

Along with the letter, the intending immigrant should attach:

  • 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, and
  • evidence that USCIS should favorably exercise discretion in the case, based on factors such as the impact on family living in the United States (especially U.S. citizens, lawful permanent residents, or others lawfully present), the advanced age or health concerns of the immigrating family, a long period of lawful residence in the United States, lack of ties to the home country, unusually long government processing delays, and so on.

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 minimum income requirements, the person might 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.

Section 204(l) Relief

A portion of the Immigration and Nationality Act (I.N.A.) numbered § 204(l) lets would-be immigrating family members of U.S. citizens and permanent residents
204(l) request that their cases go forward even if the I-130 hadn't yet been approved by USCIS (was "pending"). The immigrants would need to show that they were residing in the United States at the time of the death, and continue to do so (though a brief trip won't destroy eligibility).

Details are on the USCIS website. However, since the agency hasn't even created a form for this, and sometimes gets it confused with a humanitarian reinstatement request and then denies it (with no appeal), your best bet is truly to hire an attorney.

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 a petitioner's death.

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