If you are a U.S. citizen or a green card holder, you can file form I-130 and sponsor certain family relatives for a green card. If you are a U.S. citizen and you want to sponsor your spouse, unmarried child under 21 years of age, or your parents (if you are 21 years or older), green cards are always available and these relatives do not have to wait for the green card to become available for them. Therefore, applying for a green card as an immediate relative of a U.S. citizen generally takes much shorter time than applying under family preference categories.
Other categories of relatives of U.S. citizens or green card holders have to wait until their visa number becomes current, as green cards for them are numerically limited. It may take several years for their visa numbers to become available, depending on which preference category the relative falls under. For example, a green card for a U.S. citizen who wanted to sponsor his/her sibling would take almost 15 years for the green card to be available.
Because the green card application process may take several years, the following question often arises: What happens if the Petitioner (the U.S. citizen/green card holder sponsoring the family member) dies during the green card process?
What happens if the Petitioner dies during the green card process?
Let’s analyze the following scenario: a U.S. citizen parent filed Form I-130 to sponsor his/her married child and the child’s spouse. This is a third family preference category and this category is limited to 23,4000 green cards per year and it takes from 12-22 years (depending on where the beneficiary was born) for the green card to become current.
So what happens if the petitioner dies while the I-130 Petition is pending or after the I-130 was approved but before the visa/green card became available to the relatives?
If the I-130 Petition or the Adjustment of Status Application is pending at the time the Petitioner dies
If the Petitioner dies while your I-130 petition is pending or after your I-130 petition was approved but while your Adjustment of Status Application is pending, you should request Section 204(l) relief and you should specifically ask USCIS to “approve the petition under section 204(l)” despite your relative’s death.”
If your I-130 Petition is approved at the time Petitioner dies
If your I-130 Petition is approved at the time the petitioner died, the approval is automatically revoked and you will have to ask USCIS “to reinstate the approval of the petition under section 204(l).”
What evidence do I need to submit?
In both scenarios above, you will have to submit evidence that you have resided in the U.S. at the time the petitioner died (this evidence may include lease agreement, utility bills, pay stubs, school records etc.) and you continue to reside in the U.S. when filing for the relief.
How is residence defined?
For the purposes of Section 204(l) relief, residence is defined as your primary home or your principal dwelling place in fact, without regard to intent.” Therefore, if you were travelling for work, visiting family, or if you were on vacation when the petitioner died, you will most likely still be considered to have resided in the U.S. for the purposes of Section 204(l) relief.
In addition, you will also have to submit an Affidavit of Support (Form I-864) from a substitute sponsor. Affidavit of Support from a substitute sponsor is needed even when the deceased petitioner already filed an Affidavit of Support. The reasoning behind this requirement is that the Affidavit of Support is a contract between the Sponsor and the Government and the petitioner’s obligations terminated upon his death.
Will Section 204(l) relief be automatically granted or does USCIS have a discretion to grant it?
204(l) relief is discretionary and USCIS can deny 204(l) relief if it finds that granting the relief would not be in the public interest. USCIS will balance positive and negative factors to make a decision and the positive factors have to outweigh the negative ones for Section 204(l) relief to be granted. However, the government also understands that this relief is intend to help people in unfortunate life situations and the intent of the law is to assist in these cases.
What happens if I was married to a U.S. citizen and the U.S. citizen died while my Green Card Application was pending?
If you were married to a U.S. citizen and your spouse died while the I-130 petition or your green card application was pending, there is a special procedure and the 204(l) relief does not apply in this case.
If your spouse filed Form I-130 to sponsor you for a green card before he/she died and the Petition is currently pending or has been approved, you do not have to file anything after your spouse died and Form I-130 will be automatically converted to Form I-360 (Petition for Amerasian, Widow(er), or Special Immigrant). You should note that you will lose your eligibility to immigrate to the U.S. based on the marriage if you remarry.
In case your U.S. citizen spouse died before he/she filed the I-130 Petition, you may self-petition yourself and file the I-360 Application. You must file this petition within 2 years of your spouse’s death, otherwise you lose the eligibility to immigrate to the U.S. and you also lose the eligibility if you remarry.
In both scenarios above, you must not have been divorced or legally separated from the U.S. citizen spouse at the time he/she died.
Section 204(l) relief is available for additional categories of individuals, but for purposes of this blog post, only the I-130 category was discussed.
Please also see our blog post that discusses a Humanitarian Reinstatement. This is another form of relief you can request from the U.S. government if the U.S. relative sponsor dies after the I-130 petition is approved but before you get your green card.
Once you get your green card, you should follow the following steps to maintain your green card.
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