Exploring Immigration Options When A Petitioner Passes Away
The immigration process can be complex and challenging, and the unfortunate circumstances of the death of a petitioner can further complicate matters. However, it’s important to remember that there are still potential immigration options available for beneficiaries even after the petitioner’s passing. In this blog post, we will explore some of the alternative paths and options that individuals can consider when faced with the petitioner’s death.
Remember navigating the immigration process can be intricate, especially when faced with unexpected circumstances. It is highly recommended to seek the guidance of an experienced immigration attorney who can assess your specific situation and provide personalized advice.
Continue the Process under Section 204(l) or through Humanitarian Reinstatement:
In the event of a petitioner’s death, the U.S. Citizenship and Immigration Services (USCIS) allows for reinstatement of a petition pursuant to Section 204(l) of the Immigration & Nationality Act or through humanitarian reinstatement. The appropriate legal avenue for reinstating the petition will depend on various factors including whether the beneficiary was residing in the U.S. at the time of the petitioner’s death and at the time of filing the reinstatement request. This is where the help of an experienced immigration attorney will prove invaluable, as this a complex area of immigration law and it is important to ensure you are taking all of the necessary steps to preserve your immigration benefit.
Seeking Eligibility through a Substitute Sponsor:
Once USCIS reinstates the petition, the beneficiary may still need to obtain a Substitute Sponsor, who will step into the shoes of the deceased petitioner. This individual will need to sign Form I-864, Affidavit of Support, a contract making the individual financially responsible for the support of the intending immigrant beneficiary. The individual who signs the affidavit of support becomes the Sponsor once the intending immigrant becomes a lawful permanent resident.
By law, the Substitute Sponsor must meet the following criteria:
- Be a U.S. citizen, national, or lawful permanent resident;
- Be at least 18 years old;
- Be the beneficiary’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;
- Be domiciled in any state of the US, District of Columbia, or any US territory/possession; and
- Demonstrate the means to maintain an annual income of at least 125% of the Federal Poverty Line.
Exploring Other Family-Based Immigration Categories:
Depending on your relationship with the deceased petitioner, you may still be eligible for other family-based immigration categories. For example, if you are the spouse of a U.S. citizen who passed away, you may be eligible to file as a widow(er) under the Immigration and Nationality Act (INA). Similarly, if you are the child of a U.S. citizen who passed away, you may be eligible for certain benefits under the Child Status Protection Act (CSPA).
Pursuing Other Immigration Options:
If the options mentioned above are not applicable in your situation, it may be worth exploring other immigration pathways that do not rely on the I-130 petition. Some alternative options include employment-based visas, diversity visa lottery programs, or seeking asylum or refugee status if eligible.
Losing a petitioner can be an emotionally challenging experience, but it does not necessarily mean the end of your immigration journey. By exploring options such as Section 204(l), humanitarian reinstatement or Form I-360 (widower’s petition), you may still be able to pursue your goal of immigrating to the United States.
Remember to consult with an immigration attorney in order to receive professional guidance tailored to your unique circumstances.
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