What Will Happen If The I-130 Petitioner Passes Away Before The Beneficiary Receives The Green Card?
An Overview of Section 204(l) Relief for Surviving Relatives
As we have discussed in the article titled “How To Bring My Family In The United States As Permanent Residents ”, U.S. citizens and green card holders may sponsor certain family members for a green card. However, some categories of family-based immigration petitions could be pending for more than 20 years before the immigrant visa becomes available. During the long wait time, a lot of things may happen, and one of the most unfortunate things would be the death of the I-130 petitioner.
It is inevitable that the green card process would be affected due to the death of the petitioner, but it does not mean that the foreign relatives have to say goodbye to their green cards. The Section 204(l) Relief may come to their rescue.
1. If the petitioner passes away when an I-130 petition or I-485 application is pending
If the petitioner passes away while an I-130 petition is pending or when an I-130 petition has been approved but an I-485 adjustment of status application is still pending, the beneficiary should make a Section 204(l) Relief request and ask USCIS to approve the petition/application under Section 204(l).
2. If the petitioner passes away when an I-130 petition is approved
If the petitioner passes away when an I-130 petition has been approved, the approval is automatically revoked, and the beneficiary will need to ask USCIS to reinstate the approval of the petition under Section 204(l).
However, not all I-130 beneficiaries are eligible for the relief. To be eligible for relief under Section 204(l), at least one of the beneficiaries on the petition must:
a) have been residing in the United States when the petitioner passed away and continue to reside in the United States at the time of seeking relief; and
b) have a primary home or an actual dwelling place.
***In order to prove the beneficiary’s residence in the United States, evidence including lease agreements, rent payments, utility bills may be required.
Furthermore, the Section 204(l) Relief is not an “entitlement”, but a matter that the Congress has entrusted to DHS discretion. USCIS has discretion to deny relief under Section 204(l) if USCIS finds that granting relief under Section 204(l) would not be in the public interest. Hence, requesting a relief will not guarantee the beneficiary a green card, as USCIS will exercise discretion and weigh positive factors against negative factors to make a decision.
Since it is important to prove that the “pros” in granting the beneficiary’s request outweigh the “cons”, sufficient evidence needs to be provided. In general, the following documents and information must be included to request Section 204(l) Relief:
1. The beneficiary’s name, the deceased petitioner’s name, and the names of any other beneficiaries on the same petition;
2. The beneficiary’s alien registration number (if any);
3. The deceased petitioner’s alien registration number (if any);
4. The alien registration number for any other beneficiaries (if any);
5. The receipt number on the petition or application;
6. The deceased petitioner’s death certificate (a certified translation is required, if not in English);
7. Proof of residence at the time of the deceased petitioner’s death up until the present time (Please Note: only one of the beneficiaries on the petition needs to meet the residence requirement); and
8. Form I-864, Affidavit of Support Under Section 213A of the INA, from a substitute sponsor.
*About Substitute Sponsor*
Most family-based immigration petitions require an affidavit of support (Form I-864). However, as the petitioner passed away, the beneficiary must have a new Form I-864 from a substitute sponsor. To be a substitute sponsor, an individual must be:
- a U.S. citizen or lawful permanent resident;
- at least 18 years old; and
- related to the beneficiary in the following ways: 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.
In my next article, we will discuss how to reinstate an approved I-130 petition if the beneficiary is outside the United States when the petitioner passes away.
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