Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick answers one of your frequently asked questions: What happens to a family immigration petition if the petitioner (also known as the sponsor of the application) suddenly dies? Sadly, this situation comes up more often than we would like to admit. In this circumstance it is important to know what you can expect if the sponsor of your petition has died, and your options to legalize your status.
Keep on watching to find out more!
In the past, when a petitioner died while a petition remained pending, the petition could not be approved. Thankfully in 2009, Congress passed legislation known as the Family Sponsor Immigration Act to help applicants in this exact scenario creating a new statutory provision under the Immigration and Nationality Act known as 204(l). This provision in the law gives noncitizens the ability to seek an immigration benefit through a deceased qualifying relative under certain circumstances.
Specifically, the Family Sponsor Immigration Act, provides relief for spouses of U.S. citizens and permanent residents, unmarried sons and daughters of citizens, spouses and unmarried sons and daughter of green card holders, married sons and daughters of citizens, and brothers and sisters of citizens, in cases where the original petitioner has died. Such individuals may seek reinstatement of their immigrant petition based on humanitarian grounds if they meet the below mentioned conditions:
- 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 substitute sponsor, as described below).
What if I lived overseas when my petitioner died?
If you lived overseas when your petitioner died you will not be able to continue with your application, however you can apply for humanitarian reinstatement with USCIS. You must seek the guidance of an experienced attorney in this area of the law as these matters can become complicated quickly.
Who can serve as a substitute sponsor?
A substitute sponsor is a person that is willing to sign the I-864 Affidavit of Support and who can prove to USCIS that they have the adequate means to financially support the intending immigrant, and who will promise that the intending immigrant will not rely on the U.S. government for financial support. The substitute sponsor must be either a U.S. Citizen or Legal Permanent Resident (green card holder) that is at least 18 years of age, who meets the income requirement to sponsor the immigrant based on their household size, at a level that’s at least 125% of the federal poverty guidelines (or 100% for military families). For information about the income requirement please refer to I-864P federal poverty guidelines. The substitute sponsor must also have a domicile in the United States and be a relative of the intending immigrant. Eligible relatives include a spouse, son or daughter (aged 18 or older), parent, mother-in-law, father-in-law, sibling, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild (age 18 or older).
Green card options for Widows/Minor Children of U.S. Citizens
Widow or widowers who were married to a U.S. citizen at the time of their death, may still be eligible to apply for a green card. Additionally, children (unmarried and under age 21), may be included on the Form I-360 of the widow/widower regardless of whether the deceased spouse filed a petition for the minor child before their death.
To be eligible to receive a green card you must show that you:
- Were married to a U.S. citizen when they died;
- Have either a pending or approved Form I-130, Petition for Alien Relative or have filed Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant within two years of your spouse’s death (or no later than Oct. 28, 2011, if your citizen spouse died before Oct. 28, 2009, and you were married less than two years);
- Have not remarried; and
- Are admissible to the United States.
Filing Procedure Where Deceased Spouse Did Not File I-130
If your spouse did not file the Form I-130 for you before they died, you must file Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant, complete and sign your application, pay the appropriate filing fee, and provide all required evidence and supporting documentation listed on the form instructions.
Widow(er) With a Pending or Approved Immigrant Petition
If you were married to a U.S. citizen who filed Form I-130 for you before they died, you do not need to file anything. USCIS will automatically convert your Form I-130 to a Form I-360. To qualify, you must not have been divorced or legally separated from the U.S. citizen at the time of death. Your eligibility to immigrate as a widow(er) ends if you have remarried.
If you live in the United States, you may file Form I-485, Application to Register Permanent Residence or Adjust Status, with your Form I-360 or after you file Form I-360 (or if your converted Form I-130), whether it is pending or approved. If you already filed Form I-485 based on the petition your spouse filed, USCIS will continue to process this application and you do not need to file another one.
Applicants residing overseas are not eligible to file Form I-485 and instead must go through Consular processing at a U.S. Embassy overseas once the I-130 or I-360 has been approved.
If you find yourself in this circumstance don’t panic. Gather all documentation and/or records that may be helpful in reinstating your status and take the important step of scheduling a consultation with an experienced immigration attorney that can help you navigate your situation to ensure your successful green card application. For more information about these topics please check out our helpful links below.
Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.
- Green Card (Permanent Resident Card) for a Widow(er) of a U.S. Citizen
- Death of a Petitioner or Principal Beneficiary
- I-360, Petition for Amerasian, Widow(er), or Special Immigrant
- I-864, Affidavit of Support
- I-864P Poverty Guidelines
- Law Offices of Jacob Sapochnick YouTube Channel
- DOS U.S. Visa Updates
- November 2021 Visa Bulletin
- NVC Immigrant Visa Backlog Report
- List of Embassies and Consulates
- Youtube channel
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