After the death of your green card sponsor, how can your preserve your ability to become a permanent resident?
Under US immigration laws, there are certain circumstances that allow for you to obtain a green card even after the death of your green card sponsor. There is a law which protects widows and other surviving relatives as well as a procedure which allows for the “humanitarian reinstatement” of an I-130 which was revoked upon the death of the petitioner.
The following factors may determine if you will be able to complete the process of obtaining legal permanent resident status after the death of your green card sponsor, including:
- Whether the I-130 was approved prior to the petitioner’s death;
- The relationship between the beneficiary and the petitioner;
- Whether the beneficiary was residing in the US when the I-130 was approved; and
- The ability of the beneficiary to obtain an appropriate financial sponsor.
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Benefits for Widows
If the deceased petitioner was the spouse of the immigrant wishing to obtain lawful permanent resident status, the widow(er) can apply for immigrant benefits on the basis of the marriage. The immigrant may submit an application for a green card within 2 years of their spouse’s death if they are able to prove that:
- The marriage was in good faith;
- They were not legally separated at the time of their spouse’s death; and
- They have not remarried.
If the Form I-130 was approved before the spouse’s death, the USCIS will convert the approved I-130 petition to an approved I-360 self-petition. If the I-130 was not submitted before the death of the spouse, the surviving spouse must self-petition using Form I-360 and then apply for adjustment of status (Form I-485) if in the US or consular processing if overseas.
There are also benefits for widows of deceased members of the US Armed Forces who were killed in combat.
The Survivors Law
Perhaps the most revolutionary benefit is contained in the survivors law which protects beneficiaries of approved I-130 benefits who were residing in the US when the petitioner passed away.
Read our 2009 blog post on the survivors law to understand the both the benefits and the complexity of the law.
When a sponsor first petitions for an immigrant relative for a green card, they first file Form I-130: Petition for Alien Relative. Due to numerical quotas, the waiting times range from years to decades. If the petitioner passes away before the approval of the I-130 petition, the petition will be revoked without possibility of reinstatement. On the other hand, if the petitioner passes away after the I-130 is approved, but before the immigrant has completed the next phase of the application process (adjustment of status or consular processing), the beneficiary can request that the USCIS decide whether to reinstate the petition.
If the deceased petitioner is not the spouse of the immigrant wishing to obtain a US green card, and the sponsoring relative was residing abroad when the petitioner died, humanitarian reinstatement may be the only possibility. Humanitarian reinstatement is not available unless the I-130 petition was approved prior to the petitioner’s death. There is no form or fee to request humanitarian reinstatement. The beneficiary of the petition needs to make a request accompanied by supporting evidence to the USCIS office which approved the petition.
The decision whether to grant humanitarian reinstatement is completely discretionary on the part of the USCIS. If it is denied, there is no appeal.
Under these circumstances, it is necessary for the immigrant to find a substitute financial sponsor to replace the financial support promised by the deceased petitioner. This ensures that the immigrant will not become a burden to the US government and will be supported financially. Qualifications of a substitute financial sponsor include:
- At least 18 years of age
- A citizen or lawful permanent resident of the US
- Related to the immigrant as either a spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild, or legal guardian
The substitute financial sponsor must complete Form I-864 and the immigrant must write a letter to the USCIS asking to have the case reinstated after it was revoked due to death of the initial sponsor.
Since this process can be complicated, it is important to consult an experienced immigration attorney if an immigrant’s sponsor or petitioner passes away during the application process.
Helpful Resources Upon the Death of Your Green Card Sponsor
- New Law Will Protect Surviving Family Members
- Approval of Petitions After the Death of the Qualifying Relative (USCIS)
- Use of Substitute Financial Sponsor (USCIS)
- Humanitarian Reinstatement (USCIS)
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening an 8 attorney firm specializing in immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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