Unlike previous years, if you were waiting on a pending immigrant visa petition and your petitioner or sponsor died the process will likely become more difficult. However, your success depends on your deceased relative’s immigration status in the U.S, your relationship to that person, where you currently live, and whether you have relatives in the United States who are willing to serve as financial sponsors on your behalf.
U.S. Green Card Possibilities for Widows or Widowers of U.S. Citizens
If you were married to a U.S. citizen, you might be in a good position to get a U.S. green card. Even if a U.S. citizen spouse dies before filing a Form I-130, Petition for Alien Relative, with the U.S. Citizenship and Immigration Services (USCIS), or dies before a pending petition was granted an approval by USCIS; you might be able to carry on and petition for yourself and your minor children. There is a special application known as a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. Unlike people in other categories of family beneficiary, there is no need to have an Affidavit of Support (Form I-864) filed on their behalf. There is a deadline: You must file the I-360 petition no later than two years after the death of your U.S. citizen spouse. (See § 204(a)(1)(A) of the Immigration Nationality Act (I.N.A.)). Also, keep in mind that remarrying before you are approved for your green card will nullify your right to receiving a U.S. green card.
Probabilities For Other Family Relations to Obtain a U.S. Green Card
The Family Sponsor Immigration Act of 2009 offers a potential remedy for cases where the original petitioner for beneficiaries in the following categories has died:
- Spouses of U.S. citizens and permanent residents
- Unmarried sons and daughters of U.S. citizens
- Spouses and unmarried sons and daughters of green card holders
- Married sons and daughters of U.S. citizens, and
- Brothers and sisters of U.S. citizens
Children of people on the above list may also be included, so long as they continue to meet the legal definition of “child” when the family’s priority date becomes current. (Immediate relatives of U.S. citizens may not have to worry about priority dates, but preference relatives, who face annual limits on the number of visas allotted, must wait until a visa number becomes available to them, based on their priority date, when their I-130 petition was first filed.
Anyone who falls into one of the above categories, and their petitioner dies, they might be able to apply for what is called a reinstatement of their immigrant visa petition on humanitarian grounds. However, there are certain conditions to meet and those are:
- A Form I-130 has already been approved by USCIS
- The beneficiary was living in the U.S at the time the petitioner died and continue to reside there on the date USCIS makes a decision on an application, and
- Someone eligible and willing to act as a financial sponsor in place of an original petitioner (a substitute sponsor, joint sponsor)
If a primary applicant was living overseas at the time a petitioner dies, the immigrant visa petition will be rescinded and the process for a U.S. green card will not be able to go forward. However, an application for a humanitarian reinstatement of the I-130 petition under old laws can be filed with USCIS which will then be under the discretion of USCIS to make a decision on such application. The process will not be an easy one which will require the help of an immigration attorney.
Getting Help From a Legal Representative
One of the best choices to make if your petitioner or sponsor died is to have a consultation with an experienced U.S. immigration lawyer. An attorney can help you determine whether you are still eligible for a U.S. green card and pilot you in a prompt manner through the application process. Contact Gambacorta Law Office at (847) 443-9303 for an appointment today.