Green Card lawyer in Colorado
Today we are going to talk about situations where a person who files an alien relative petition (Form I-130), whether it is a spouse, parent, child over 21 years of age, permanent resident or U.S. citizen, dies before the beneficiary completes the immigration process. Unfortunately, due the COVID pandemic season, there were many cases of petitioners who died in the middle of the immigration process, a situation that has been very common in the last 3 years and many people are wondering what is happening with their immigration process.
What do I do if I have a family petition in progress but my petitioner is deceased?
Well, in the scenario that if you are a foreign living in the U.S. or outside the U.S., you have an alien relative petition or form (I-130) in process and your spouse, parent, child over 21 or sibling who is a permanent resident or U.S. citizen petitioner dies, you must first inform the USCIS (United States Citizenship and Immigration Services) by a simple letter giving notice of the facts, mentioning your case number, receipt, date you submitted the I-130 application and the death certificate of your relative.
It is very important that you give notice of the facts, otherwise, if it is discovered at your residency or citizenship interview that your petitioner died prior to the approval of your case, you may be subject to penalties or even final deportation.
What happens to my case if my petitioner relative dies?
Unfortunately, when the principal petitioner dies before the approval of your Form I-130, your case is automatically cancelled. That is, your case will automatically be terminated, however, it is necessary for you to immediately notify the USCIS to attest to your situation.
Is there any other option so that my application is not cancelled if my petitioner dies?
There are two scenarios in which you can “save” your application for permanent residency in the event of the death of the petitioner relative. The scenarios are as follows:
- If you are the widow(er) of a U.S. citizen petitioner: Widows or widowers who were married to U.S. citizens at the time of the citizen’s death may apply for Permanent Residence by meeting the following requirements:
- If you were married to a U.S. citizen and had filed Form I-130, Petition for Alien Relative for yourself before he or she died, you do not need to file anything. The Form I-130 will automatically convert to a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant. If you have children (unmarried and under 21), they can be included on Form I-360 regardless of whether your deceased spouse had filed a petition for them.
- You must NOT have been divorced or legally separated from the U.S. citizen at the time of death. Your right to immigrate as a widow(er) ends if you have remarried.
- If you were married to a U.S. citizen prior to his or her death, but an I-130 petition had not been filed on your behalf, you may file for yourself as an “immediate relative” on form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.
- You must file the petition within 2 years of the citizen’s death.
- Humanitarian Reinstatement. Is a discretionary form of relief available to beneficiaries with the following characteristics:
- That you are the primary beneficiary of the I-130 petition. Derivative beneficiaries do not apply. However, if the primary beneficiary’s application is approved, derivative beneficiaries may benefit from further processing.
- The petitioner’s death must have occurred after the approval of the I-130 form. That is, you must have the Notice of Approval of your Form I-130 at the time of your relative’s death. If your case is still ongoing and you do not have it, then you are not eligible.
Some requirements to apply are:
- Have a U.S. citizen or permanent resident substitute sponsor who is 18 years of age or older and is a relative such as a spouse, parent, mother, mother-in-law, sibling, child, son, daughter, son-in-law, brother-in-law, brother-in-law, grandparent, grandchild, or legal guardian.
- Evidence that can demonstrate the negative impact on your U.S. citizen or resident relatives if your petition is cancelled.
- Evidence of health concerns, advanced age, lack of ties to your home country, or any other factors that you believe weigh favorably in the reinstatement of your case.
The Humanitarian reinstatement is a discretionary benefit. This means that the immigration officer reviewing your case will make a decision based on their own judgment and analysis of the evidence you include in support of your case.
Generally speaking, your request must merit an affirmative discretionary determination, meaning that the “positive factors” for granting your request must outweigh the “negative factors”.
The content of this blog is for informational purposes only and does not constitute a legal consultation or recommendation. It is always advisable to consult with an immigration attorney to analyze your particular case and provide you with the possible options for which you are eligible.