How can we avoid a close relative’ s death from becoming a double tragedy when that person was the petitioner of our Green Card (legal residency) in the United States?
The death of a close relative constitutes a real tragedy, but when this person was a U.S. citizen offering the legal path for obtaining a legal residence in the United States, this loss becomes even greater. While we mourn our loved relative, we also feel that with that person our illusion of obtaining a legal residence suddenly vanishes. Traditionally, this situation used to be a double tragedy with no remedy, but with recent changes introduced in the legislation, this situation can now have a solution.
There are currently three legal remedies to solve this situation. These are the remedies provided for by: (1) the new Section 204 (l) of the Immigration and Nationality Act, (2) the "Humanitarian Reinstatement", and (3) the special provisions for widows or widowers of U.S. citizens, all of which will be explained below:
The new Article 204 (l)
In the past, a petition by a foreign relative could not be approved if the petitioner died while the proceedings were still pending. However, in 2009 the U.S. Congress addressed this scenario with a new legal provision: Article 204 (l) of the Immigration and Nationality Act. This provision gave aliens the ability to obtain, in certain circumstances, immigration status through a deceased relative, whether the deceased relative was a U.S. citizen or lawful permanent resident.
The United States Citizenship and Immigration Services (USCIS) may approve an application for adjustment of immigration status based on an approved petition by a relative after his death when it has been approved after October 28, 2009, provided that the following three conditions are met: (i) that the beneficiary was resident in the United States at the time of the death of the petitioning relative; (ii) the beneficiary continues to reside in the United States on the date of the decision of his application (and at the time of making the adjustment of his/her immigration status); and (iii) that the applicant is one of the persons eligible for this purpose according to the law. The following are considered eligible to request this relief: the beneficiaries (principal or derivative) of an immigrant visa petition based on a family relationship or employment whether it is pending or it has already been approved; beneficiaries who are derivatives from a pending or approved petition for Refugee, Asylee, VAWA (Violence Against Women), T visa (for victims of human trafficking) or U visa (for victims of violent crimes).
This remedy may apply to any application for adjustment of status awarded on or after October 28, 2009, even if the qualifying relative died before October 28, 2009. If a petition has been denied after October 28, 2009, without considering the effect of the aforementioned section 204 (l) of the law, and if such article would have allowed its approval, USCIS must reopen the case to make a new decision in light of this new rule.
With respect to the residence requirement, the law defines an applicant's residence for these cases as their “primary place of residence” “regardless of intent.” If the applicant's residence was in the United States at the required times, then, the applicant meets the residency requirement. Therefore, an applicant who was temporarily abroad when his or her petitioning relative passed away, does not need to prove that he or she still resides in the United States. In addition, the legal definition of residency does not require the applicant to prove that their presence in the United States is legal. However, the enforcement of a deportation order extinguishes a non-citizen's residence in the United States.
With respect to derivative beneficiaries, as long as any one surviving beneficiary of a petition meets the residency requirement, the petition may be approved for all of them. All beneficiaries may immigrate to the same extent as they would have been allowed if the qualifying relative had not died. It is not necessary that all beneficiaries meet the residency requirements to remain eligible for adjustment.
The Humanitarian Reinstatement
If your case does not qualify for the remedy under Section 204 (l) of the Immigration and Nationality Act, do not despair because there is still a remedy that could apply to your case: the humanitarian reinstatement.
Although Title 8 of the Code of Federal Regulations in its Section 205.1 (a) provides for the automatic revocation of an approved family petition in the event of the death of the petitioner, subsection (3) (i)(C) provides exceptions to this rule. This subsection grants USCIS the authority to reinstate an already approved family petition that has been automatically revoked by the death of the petitioner, when such revocation would be inappropriate based on humanitarian factors.
This remedy is more restrictive than the relief provided under Section 204(l) because it can only be invoked by the primary beneficiary of an I-130 family petition and only after the petition has been approved. Therefore, it does not apply to pending cases, neither to cases under I-140 (petition for foreign workers), nor to derivative beneficiaries. But if your case is an already approved family petition, in case you do not qualify to apply for the remedy provided by Section 204(l) because, for example, you were not residing in the United States at the time of the death of your petitioning relative, you may still qualify for the Humanitarian Reinstatement relief.
On the other hand, the good news is that while derivative beneficiaries cannot directly apply for the Humanitarian Reinstatement of the petition, should USCIS approve the principal beneficiary's application, any derivative beneficiary would also benefit from this approval.
One issue to consider in both remedies is that the death of your petitioner does not change how the Form I-864 requirement (sponsor's financial support) applies to you. If at the time of making the original petition you were required to have Form I-864 and the petitioner has died, in order to reinstate the process you must have a new Form I-864 from a substitute sponsor. The substitute sponsor must be a U.S. citizen or lawful permanent resident, must be at least 18 years of age, and be a family member. Fortunately, for purposes of this remedy, the legislation considers a “family” in a broad sense and goes beyond the traditional concept of the nuclear family. Therefore, substitute sponsors may be a spouse, father, mother-in-law, father-in-law, brother, son, son, daughter, son-in-law, son-in-law, daughter-in-law, sister-in-law, sister-in-law, grandfather, grandson, or even the legal guardian of the beneficiary.
Please note that the Humanitarian Reinstatement is a discretionary benefit. Exercising discretion means that in deciding, USCIS compares positive factors to negative factors. In addition to meeting the basic requirements for Humanitarian Reinstatement, your request must justify a favorable exercise of discretion by the authorities, which means that you must convince the authorities that the "pros" (favorable aspects) of granting your application outweigh the "cons" (unfavorable aspects).
The case of widowers of U.S. citizens
Widows or widowers who were married to U.S. citizens at the time of the citizen's death can apply for a “green card” (i.e., legal permanent residence in the United States). Until October 28, 2009, the petitioner of this benefit was required to have been married to the deceased citizen for at least two years. Congress eliminated this requirement, effective October 28, 2009. Consequently, at present a widow or widower of a U.S. citizen must only prove that he/she was legally married to the U.S. citizen and that he/she entered the marriage in good faith and not only to obtain an immigration benefit.
If you were married to a U.S. citizen who had filed Form I-130 petitioning you before your death,you do not need tofile anything whether your petition is approved or merely pending. Form I-130 will automatically become a Form I-360 widower petition, and ifyou have children (unmarried and under the age of 21), these can be included on Form I-360, regardless of whether your deceased spouse had or petitioned forthem. To qualify, you must not have been divorced or legally separated from the U.S. citizen at the time of your death. Your eligibility to immigrate as a widower ends if you have remarried.
On the other hand, if you were married to a U.S. citizen but did not have an I-130 petition filed on their behalf, you can petition as an "immediate relative" on Form I-360. To qualify, you must not have been divorced or legally separated from the U.S. citizen at the time of your death. Your eligibility to immigrate as a widower ends if you have remarried. You must submit an application within 2 years of the citizen's death.
Finally, if you are a surviving spouse of a member of the United States armed forces who died in combat, there are specific immigration benefits for these cases under Section 1703 of Act 108-136.