Majority of immigrants seeking legal advice do so in the hopes of leading better lives in the United States. Whether you are a migrant looking for work, reuniting with family, or applying for refuge, it’s no secret that the immigration process is prone to delays even at the smallest issue. If you are submitting your initial petition, need help understanding legalese, or have urgent revisions that need to be addressed, reach out to our New Jersey Immigration attorney today.
My immigrant petition sponsor died. What should I do?
If your sponsor unexpectedly passed away while your immigration petition is ongoing, you may still be able to continue your immigration process with the U.S. Citizenship and Immigration Services (USCIS).
In the past, the petition would typically die with the petitioner. But now there are options available for the applicant to continue seeking an immigration benefit through a deceased qualifying person.
If a sponsor dies before the immigration petition is approved…
If a petitioner’s sponsor passes away before the petition is authorized, your application may be affected depending on your specific circumstances and which stage of the process you’re at. Here are a few possible scenarios:
- Immediate Relative Petition (Form I-130): If a U.S. citizen or lawful permanent resident files a petition for an immediate relative (spouse, parent, or unmarried child under 21), and the petitioner dies before the petition is approved, the petition may be automatically revoked unless certain conditions are met. The beneficiary may be eligible for humanitarian assistance.
- Family Preference Petition (Form I-130): If a U.S. citizen or lawful permanent resident files a petition for a family preference category (unmarried adult children, married children, siblings), and the petitioner dies before the petition is approved, the petition is typically automatically revoked. The beneficiary would no longer be eligible to receive an immigrant visa based on that petition.
- Employment-Based Petition: If an employer files an employment-based immigration petition (such as Form I-140) and the petitioner (employer) dies, the petition may still be processed and approved if certain conditions are met. The executor of the deceased petitioner’s estate or the successor-in-interest may be able to continue the process.
- Substitute Sponsor: To obtain a substitute sponsor, the applicant must file a Form I-864 in place of the deceased visa petitioner. The substitute sponsor must meet all of the financial requirements of a sponsor pursuant to Immigration Nationality Act (INA) 213A and assume all of the obligations of an I-864 sponsor. If the petitioner or primary sponsor dies before all qualified family members have immigrated, a new sponsor may submit a Form I-864 to become the primary sponsor. It is important to note that if the visa petitioner dies after approval of the visa petition but USCIS decides to let the petition continue, a substitute sponsor must file a Form I-864 in place of the deceased visa petitioner.
If you are the widow or widower of a U.S. citizen…
You are in a very strong position to obtain a U.S. green card if you were married to a citizen of the country. Even if an American spouse dies before submitting a Form I-130 petition to the USCIS for an immigrant, or who passes away prior to USCIS approving the petition, you may still be able to file a petition on behalf of yourself and your minor children.
Your petition needs to be submitted on USCIS Form I-360. You are exempt from the requirement to file an Affidavit of Support (Form I-864) on your behalf, unlike other types of family beneficiaries.
The I-360 petition must be submitted no later than two years following the passing of your spouse who is a citizen of the United States. Keep in mind that remarrying before receiving your green card will revoke your right to it (INA 204).
If you are the relative of a US citizen…
Do you meet any of the following preference relative categories?
- Spouses of U.S. citizens and permanent residents
- Unmarried sons and daughters of U.S. citizens
- Spouses and unmarried sons and daughters of green card holders
- Married sons and daughters of U.S. citizens, and
- Brothers and sisters of U.S. citizens.
If you do, the Family Sponsor Immigration Act of 2009 offers a potential remedy in the event that your initial petitioner or sponsor dies.
If your child has an ongoing petition, it may still continue provided they meet the criteria for being considered a “child” under the law when your family’s priority date becomes current.
Since preference relatives are subject to annual caps on the maximum number of visas granted, you must wait until a visa number becomes open to you. This is based on your priority date when your I-130 petition was originally filed.
Fortunately, immediate relatives of US citizens need not worry about priority dates.
How to Request Reinstatement on Humanitarian Grounds
If your sponsor dies and you fall into one of the categories previously mentioned, you may request reinstatement of your immigrant petition on humanitarian grounds. However, you must adhere to certain requirements to be entitled to request reinstatement:
- Your Form I-130 has already been approved by USCIS.
- You were living in the United States at the time the petitioner died and continue to reside there on the date USCIS makes a decision on your application, and
- You find someone eligible and willing to act as your financial sponsor in place of your original petitioner.
A New Jersey immigration lawyer can determine if you are qualified to request reinstatement and help you continue your immigration petition.
If you are not qualified to request reinstatement…
If you do not meet the requirements, your petition will be canceled. This means you won’t be able to submit a green card application right away if you are residing abroad when the petitioner passed away.
If you wish to appeal your immigration petition…
You can appeal to USCIS for restoration of the I-130 petition for humanitarian reasons under the previous laws, but such an approval is entirely discretionary. Long delays are probable for you. In order to provide convincing justification for your permission, you’ll need a lawyer’s assistance.
Get immigration advice from Andres Mejer Law today!
If your petition has passed before you were granted your visa or green card, the best line of action is to speak with an experienced immigration attorney. Our New Jersey immigration lawyer can help you quickly through the appropriate application process and establish whether you are still eligible for a green card.
Andres Mejer Law strives to protect the rights of petitioners throughout the immigration process. We provide immigration advice, assist in visa applications, and resolve issues that may hold up your citizenship. Our New Jersey immigration attorneys are experienced in all types of immigration cases, such: green card applications, marriage and fiance visa filings, citizenship applications, petitions for victims of abuse.
