If you’re waiting to immigrate to the U.S. on the basis of an I-130 petition filed by a family member who is a U.S. citizen or lawful permanent resident, that person’s death will certainly make the process more difficult. But unlike in past years, when the petition always died with the petitioner, you might still be able to get a U.S. green card.
Your success depends on your relative’s immigration status in the U.S., your relationship to him or her, where you currently live, and whether you have relatives in the United States who are willing to serve as financial sponsors for you.
If you were married to or the minor child of a U.S. citizen, you are in an especially good position to get a green card. Even if your U.S. citizen spouse died before filing the Form I-130 petition with U.S. Citizenship and Immigration Services (USCIS) for you, or before the petition was approved, you might be able to carry on and petition for yourself and your minor children.
You would need to file your petition on USCIS Form I-360. Unlike other family beneficiaries, you need not have an Affidavit of Support (Form I-864) filed on your 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 destroy your right to it.
The Family Sponsor Immigration Act, signed by President Obama in 2009, provides a potential remedy for spouses of U.S. citizens and permanent residents, unmarried sons and daughters of citizens, spouses and unmarried sons and daughter of green card holders, married sons and daughters of citizens, and brothers and sisters of citizens, in cases where the original petitioner has died.
The 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 don’t have to worry about priority dates, but preference relatives, who face annual limits on the numbers 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.)
If you fall into one of the above categories, and your petitioner dies, you might be able to apply for what’s called reinstatement of your immigrant petition on humanitarian grounds. However, you'll have to meet certain conditions, including that:
As you can see, if you are living overseas at the time the petitioner dies, the petition will be revoked and you will not be able to go directly forward with an application for a green card.
You can apply to USCIS for humanitarian reinstatement of the I-130 petition under old laws, but such a grant is completely discretionary. You're likely to face long delays. You’ll need a lawyer’s help to present compelling evidence of why your approval should be granted.
Serving as a substitute sponsor is a primarily financial relationship. It involves filling out an Affidavit of Support on USCIS Form I-864. The Affidavit must indicate that the new sponsor is able to support the immigrants, as well as his or her own household, at a level that’s at or above 125% of the federal Poverty Guidelines (or 100% for military families). To see the latest guidelines, look at Form I-864P on the USCIS website.
In fact, by filing Form I-864, the substitute sponsor promises the U.S. government to pay back any need-based public assistance that the named immigrants receive for approximately the first ten years of their having a green card.
Some other eligibility requirements apply to the substitute sponsor as well. He or she must be a U.S. citizen or a lawful permanent resident of at least 18 years of age who has a domicile in the United States. And the sponsor must be a relative of the immigrant's. Eligible relatives include a spouse, son or daughter (aged 18 or older), parent, mother-in-law, father-in-law, sibling, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild (age 18 or older).
If your petitioner has died, your wisest course would be to consult with an experienced U.S. immigration attorney. The attorney can determine whether you are still eligible for a green card and guide you in a timely manner through the appropriate application process.