What happens after the Petitioner dies?

The loss of a loved one brings immense struggle and tragedy within a family. However, when that loved one filed an I-130 petition on behalf of a relative, it can be even more of a hardship because their death causes the petition to be automatically revoked. Fortunately, USCIS allows for family members to still benefit from these petitions so long as they fall under one of three categories: Widowers of U.S. citizens, Certain Surviving Relatives under INA Section 204(l), and Humanitarian Reinstatement.

Widowers of United States Citizens can continue to benefit from their spouse’s I-130 petition if they (1) do not remarry, (2) show that they were legally married to the U.S. Citizen, (3) are otherwise admissible, and (4) there was no legal separation or divorce at the time of death. The process depends upon the status of the widower’s immigration case at the time of the spouse’s death.

Another way to continue to benefit after the petitioner’s death is for certain surviving relatives through INA Section 204(l). Unlike the protection for widowers mentioned above it is available to not only the principal beneficiary, but derivative beneficiaries as well. 204(l) provides protection both when the petitioner dies and in some cases when the principal beneficiary or other principal applicant dies. This form of protection is available for I-130 family-based petitions, I-140 employment-based petitions, I-730 refugee/asylee relative petitions, T and U nonimmigrant visa petitions, and asylum petitions. In order to benefit, the applicant must demonstrate residence in the U.S. both at the time of the death and at the time of the application.

The final way to benefit from an I-130 petition after the petitioner’s death is through Humanitarian Reinstatement. Unlike INA Section 204(l), only principal beneficiaries of an approved petition are eligible to use this remedy. Humanitarian Reinstatement is a request to USCIS to not revoke the approved petition for “humanitarian reasons” such as the impact of family living in the U.S., advanced age or health concerns, ties to the home country, unusually lengthy processing delays. Therefore, this application is entirely discretionary, so it is important to provide USCIS with a detailed and thorough submission.

The immigration system can be challenging to navigate, especially after the death of a petitioner. Our office has assisted many beneficiaries of pending and approved petitions in maintaining their eligibility for immigration benefits after the petitioner has passed away through all three available mechanisms. These provisions provide avenues to obtain U.S. immigration status to surviving relatives who are struggling with not only the loss of their loved one but the loss of their immigration case and can provide clarity and comfort during a challenging time.

To schedule a consultation an Immigration and Nationality Lawyer at the Nachman Phulwani Zimovcak (NPZ) Law Group, please feel free to call the Firm at 201-670-0006 x (107). Our main office is in Ridgewood, New Jersey. We also have offices located in Raritan, New Jersey and New York City, as well as affiliated offices in India and Canada. For more information about our Firm’s immigration and nationality law practice, please feel free to visit our website at https://www.visaserve.com or to send us an e-mail at info@visaserve.com.