What happens to the beneficiary when a petitioner on a family-based immigration petition dies? For example, if your spouse is a U.S. citizen and has petitioned for you to adjust status or consular process, what happens if he dies while the process is still pending? In the past, typically this would lead to the petition being revoked or denied, meaning the alien could not emigrate based on her deceased relative's petition. In recent years, however, USCIS has relaxed the rules so there are more options for people in this situation, though there are still many restrictions and traps. What options are available?
Under a normal adjustment process based on marriage to a U.S. citizen, the alien files two different forms: an I-130 and an I-485. The I-130 establishes the bona fides of the marriage relationship. Once that is approved, the I-485, the actual application for permanent resident status, can be approved. If a spouse dies while there is a pending or approved I-130, that I-130 will convert into a pending or approved I-360, which forms an alternate based for filing the I-485. However, the widow or widower must otherwise maintain eligibility, meaning, among other things, they cannot re-marry before the I-485 is approved. If the I-130 was never filed and the petitioner died after October 28, 2009, the beneficiary can file the I-360 directly, as long as it is filed within two years of the spouse's death. Note that this process only applies to spouses of U.S. citizens and derivatives of those spouses.
There is a separate process for relatives (not just spouses) of lawful permanent residents (LPRs), often referred to as 204(l) for the section of the INA in which this law is written. Under this law, the alien can be any immediate relative or beneficiary of a family-based preference petition. For this provision to apply, the beneficiary must reside in the U.S. both at the time of the petitioner's death and at the time the application is adjudicated. One of the major hurdles for 204(l) is that the immigrant must find an alternate sponsor for her affidavit of support. So, she must have another relative who is a U.S. citizen or LPR and is willing and able to sponsor her financially.
A final option is humanitarian reinstatement, which used to be the only option in these cases but remains available for people not eligible for either an I-360 or 204(l). This law gives USCIS the discretion to reinstate a petition that was terminated due to a petitioner's death, based on a case-by-case evaluation of humanitarian factors. These factors include the beneficiary's length of presence in the U.S., family ties, ties to her home country, advanced age or health problems, and other humanitarian considerations. Additionally, as with 204(l), the alien must have an alternate qualifying relative for the affidavit of support. Note that this only applies to I-130 petitions that were already approved then revoked due to death; it does not apply to applications that were still pending or not filed when the petitioner died.
This area of immigration law can be confusing for many people. If you think you might qualify for one of these programs, call the office of Salmon-Haas for a free analysis.
