When death is not the end: Family immigration options when the petitioner dies

by Cristina A. Godinez, Esq.

| Photo Courtesy of Drew Angerer/Getty Images

“Death ends a life, not a relationship.” ― Mitch Albom, Tuesdays with Morrie

It is probably happening more frequently now, as a result of the rising Covid-19 death toll in the United States.

Family members seeking to immigrate to the U.S. may be unable to do so because the relative who filed the petition for them passed away. Under immigration law, immediate relative and other family-based petitions are automatically revoked and terminated once the petitioner or beneficiary dies.

However, all is not lost for survivors of the deceased petitioner or beneficiary.

The Immigration and Nationality Act (INA) and current U.S. Citizenship and Immigration Service (USCIS) regulations provide three ways for the family members to keep alive their ability to immigrate to the U.S. These options mainly depend on the nature of the relative petition, or whether the petition is still pending or already approved at the time of the relative’s death.

Humanitarian Reinstatement

An individual may apply to the USCIS for humanitarian reinstatement if s/he is the principal beneficiary of an approved Form I-130, Petition for Alien Relative, and the petitioner-relative has died.

This remedy is not available to a derivative (e.g. the child) of the principal beneficiary, or if the I-130 petition has not yet been approved. Humanitarian reinstatement is a discretionary benefit. This means in addition to satisfying basic requirements, USCIS will “compare positive factors against negative factors to make a decision.”

This requires submitting evidence of the following:

• Impact on family living in the United States (especially U.S. citizens, lawful permanent residents, or others lawfully present);
• Advanced age or health concerns of the applicant;
• Applicant’s ties (or lack thereof) to home country;
• Other factors, such as unusually lengthy government processing delays; and
• Any and all other factors you believe weigh in favor of reinstatement.

A denial of the request for humanitarian reinstatement is not subject to appeal.

Those applying for humanitarian reinstatement must have a substitute sponsor who will sign the I-864 Affidavit of Support, and present evidence that demonstrates why the application should be granted. The substitute sponsor must be a U.S. citizen or green card holder, at least 18 years old, and is either the applicant’s spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.

INA 204 (l) Relief for Surviving Relative

In October 2009, the harsh consequences of the rule that the “petition dies with the petitioner,” was alleviated by INA 204 (l), which essentially allows the petition to survive the death of the petitioner.

Under INA 204(l), an individual may request USCIS for relief if s/he is a:

• Principal or derivative beneficiary of a pending or approved I-130 family-based petition, when the petitioner died;
• Derivative beneficiary of a pending or approved I-130 petition, when the principal beneficiary died;
• Derivative beneficiary of a pending or approved I-140 employment-based petition, when the principal beneficiary died;
• Beneficiary of a pending or approved I-730 refugee/asylee relative petition, when the petitioner died;
• Derivative of a T or U nonimmigrant visa holder admitted as a derivative, and the principal visa holder has died;
• Derivative asylee and the principal asylee has died.

Those who seek this relief must be able to show that they were residing in the U.S. at the time of the qualifying relative’s death and that they continue to reside in the U.S. Since the USCIS does not consider residence as physical presence in the U.S., it is possible for an individual who is briefly abroad to avail of this relief.

USCIS has discretion to deny relief under section 204(l) if it finds that granting relief would not be in the public interest. In cases where the applicant is under an immigration category that requires submitting an affidavit of support, s/he should have a substitute sponsor.

Widow(er) of. U.S. Citizens

The widow(er) of a U.S. citizen is legally considered an immediate relative and may immigrate as such. In practical terms, this means that a widow(er) may file an I-360 self-petition within 2 years of the death of his/her spouse. If s/he has pending spousal I-130 petition when the U.S. citizen spouse died, s/he may request to have this automatically converted into an I-360 widow(er) petition.

In addition, the widow(er) must show that s/he has not remarried; that the marriage to the deceased U.S. citizen was entered into in good faith and not primarily for immigration; and that there was no divorce or legal separation at the time of the U.S. citizen’s death.

The law allows 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. Before October 2009, the law required the couple to have been married for at least 2 years at the time the U.S. citizen died in order for the surviving spouse to self-petition.

To determine whether an immigration case can be successful even after the death of a family member, other aspects such as the presence of inadmissibility grounds will need to be evaluated. For example, an individual who is subject to the 3- or 10-year unlawful presence bar or has a prior removal order may need to apply for a waiver in order to eventually obtain a green card.

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Cristina Godinez is an attorney who has provided immigration solutions to families, businesses and at-risk migrants in the United States for over 15 years. She worked with the immigration law practice group of a top-tier global law firm and later, with the world’s largest immigration law firm. She is also the attorney at the faith-based Migrant Center of New York where she oversees the delivery of immigration legal services to low-income clients. Cristina is a member of the American Immigration Lawyers Association.

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