Reuben S. Seguritan

Green Card Is Possible Despite Petitioner’s Death

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Is it still possible for the beneficiary to get a green card even if petitioner dies? Before Section 204(l) of Immigration and Nationality Act was enacted by Congress, the death of the petitioner automatically revoked the petition save for two instances.

One was when the beneficiary was the widow or widower of a US citizen who might benefit as the surviving spouse only if they were married for at least two years or the so-called “Widow Penalty” and two, through reinstatement of an approved I-130 petition on humanitarian grounds.

With Section 204(l), those eligible for survivor immigration benefits expanded to include the following: the beneficiary of a pending or approved immediate relative visa petition; the beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries; any derivative beneficiary of a pending or approved employment-based visa petition; the beneficiary of a pending or approved Form I-730 or Refugee/Asylee Relative Petition; an alien admitted as a derivative “T” or “U” nonimmigrant; or a derivative asylee.

Also, the “widow penalty” has been eliminated allowing widows of U.S. citizens and their children to self-petition even if the marriage was less than two years when the petitioner died.

In order to benefit from Section 204(l), the surviving relative must be residing in the U.S. at the time the petitioner or qualifying relative died and must continue to reside in the U.S. Residence for this purpose means the “principal actual dwelling place in fact, without regard to intent.” For petitions with multiple beneficiaries, it is not required that all beneficiaries meet the residence requirement. If one beneficiary meets the residence requirement, all other beneficiaries, such as the spouse and minor children of the principal beneficiary, may benefit from this section.

Section 204(l) seeks to place the beneficiary in the same position but for the death of the petitioner. The USCIS will adjudicate the petition and other related applications as if the petitioner or qualifying relative did not die. Thus, if the qualifying beneficiary is eligible under Section 204(l), the USCIS will consider applications for waiver of inadmissibility due to fraud or criminal conviction, for instance. The beneficiary must establish extreme hardship suffered by the qualifying relative if he were alive and must prove that he deserves the favorable exercise of discretion.

If an affidavit of support is required, a Form I-864 of a substitute sponsor must be submitted. The substitute sponsor must be a U.S. citizen or lawful permanent resident, at least 18 years old and must be related to the qualifying beneficiary. The substitute sponsor may be the applicant’s spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild or legal guardian.

If the beneficiary was residing outside the U.S. when the petitioner died, Section 204(l) will not apply so he has to request for a humanitarian reinstatement of the revoked family-based petition. Only approved petitions may be reinstated and not petitions where the petitioner died before the approval. 

The following factors are considered in evaluating a humanitarian request: disruption of an established family unit; hardship to U.S. citizens or lawful permanent residents; if the beneficiary is elderly or in poor health; if the beneficiary has had lengthy residence in the United States; if the beneficiary has no home to go to; undue delay by the DHS or consular officer in processing the petition and visa; and if the beneficiary has strong family ties in the United States.

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281.)

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