U.S. Immigrant Cases: Death of the Petitioner
In this age of long processing times, there have been multiple instances where the petitioner has passed away prior to the completion of the case. It is a common occurrence among the hundred of thousand cases that the United States processes every year.
For many years, the US Immigration office has ruled that the law did not allow the petition to move forward. Their position was that when the petitioner died, the processing of the case ended and the beneficiary could not be the immigration benefit. However this has changed with recent changes in immigration law. There are now multiple options for beneficiaries of the immigration petition.
I-360 for Widows of US Citizens
An I-360 petition is provides survivor benefits to widows of a U.S. Citizen. If a U.S. Citizen has filed an I-130 petition for his widow, the petition will be converted to an I-360 petition. A pending I-130 is automatically converted to a pending I-360 petition. An approved I-130 is considered an approved I-360 petition. The surviving spouse must meet the legal requirements for a widow classification and must not have remarried.
The surviving spouse would meet the widow classification if the deceased was a U.S. citizen, an I-130 petition has been filed by the deceased, the marriage was bona fide, the spouse and citizen were not legally separated at the time of the death, and the widow did not remarry. Children of the widow are eligible in a derivative classification and can be included in the following to join petition.
The I-130 petition is automatically converted to an I-360 for both pending and approved I-130 cases. The widow just needs to inform the USCIS of the petitioner’s death and provide a death certificate. If the I-130 has been approved and is currently processing at the National Visa Center, the widow just needs to inform and provide the death certificate to the U.S. consulate handling the case. If the widow does not have an I-130 petition filed by their U.S. Citizen spouse, they can file their own I-360 within two years of the citizen’s death.
Spouses of Lawful Permanent Residents and other Derivative Beneficiaries
Section 204(1) of the Immigration and Nationality Act provides benefits to other surviving relatives including the spouses of a deceased lawful permanent resident. The principal beneficiary and/or derivative beneficiary of an immediate relative or family based visa petition can use Section 204(1) if the petitioner or principal beneficiary has passed away. The surviving beneficiaries must have resided in the United States when the petitioner or principal beneficiary died and continued to live in the United States while the case is pending.
In addition, a substitute sponsor might be required to file a Form I-864 Affidavit of Support. There are no fees required or official form that must be filed. The surviving beneficiaries has to file a request for the 204(1) consideration to the USCIS office that is currently processing the petition with evidence of their qualifications for consideration.
Humanitarian Reinstatement
If the surviving beneficiaries (except widow of a U.S. Citizen) are residing outside of the United States while the case is pending, the approved petition is revoked automatically upon the death of the petitioner. The surviving beneficiaries can file for reinstatement of an approved family based immigrant visa petition based on humanitarian reasons.
The petition must have been approved prior to the death of the petitioner. Derivative beneficiaries are entitled to accompany or follow to join the principal beneficiary. The beneficiary will also have to locate a substitute sponsor who will agree to file an I-864 Affidavit of Support on their behalf.
There are no official forms to file for reinstatement. The principal beneficiary has to submit a letter requesting reinstatement and documenting the request. The letter must to provide reasons to grant reinstatement based on humanitarian reasons.
There are many factors that are considered in the request. Some of the factors include whether the beneficiary has other relatives living lawfully in the United States, the beneficiary has established a life in the United States for a lengthy period, and the beneficiary’s ties to the home country. In addition, the beneficiary’s advance age or poor health and whether government delays in processing the approved case was unreasonably long are considered.
The death of the petitioner can generate sadness and confusion over the immigration process. The United States understands this and has made exemptions where the result of an automatic denial would create an unjust situation. It is important to discuss your case with an immigration professional prior to making any wrong moves.
Category: US Immigration
About the Author (Author Profile)
Mr. Robert R. Virasin is a graduate of the University of California, Los Angeles with a Bachelor Degree in Political Science, Mr. Virasin completed his Juris Doctorate at the University of Houston and a Masters of Laws (Business) from Chulalongkorn University, Bangkok. Mr. Virasin is a member of the State Bar of Texas and is a licensed U.S. attorney with over 15 years of legal experience. Robert is a regular contributor and author of a number of immigration related articles.
