What Happens to an Immigration Petition If the Sponsor Dies?

If you are waiting to immigrate to the United States 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 (lawful permanent residence).

Your success depends on your deceased relative's immigration status in the United States, your relationship to that person, where you currently live, and whether you have other relatives in the United States who are willing to serve as financial sponsors for you. Also, as with any immigration application, you will need to show that you are not inadmissible to the United States.

For the law generally governing this issue, see 8 U.S.C. §1154(a)(1).

Green Card Possibilities for Widows or Widowers of a U.S. Citizen

If you were married to a U.S. citizen, you are in an especially good position to get a U.S. green card. Even if a U.S. citizen spouse dies before filing a Form I-130 petition with U.S. Citizenship and Immigration Services (USCIS) for an immigrant, or dies before the petition was approved by USCIS, you might be able to carry on and petition for yourself and your minor children.

You would need to submit your self-petition on USCIS Form I-360 (using the address shown on the page associated with the form) and pay a filing fee. Unlike people in other family- beneficiary categories, 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.) and 8 U.S.C. §1151(b)(2).) Also, keep in mind that remarrying before you are approved for your green card will destroy your right to it.

See How to File an I-360 "Special Immigrant" or VAWA Green Card Petition.

Green Card Possibilities for Other Family Relations

The Family Sponsor Immigration Act of 2009 provides a potential remedy for cases where the original petitioner of people in the following categories has died:

• spouses of U.S. citizens and permanent residents
• unmarried sons and daughters of U.S. citizens
• spouses and unmarried sons and daughters of green card holders
• married sons and daughters of U.S. citizens, and
• brothers and sisters of U.S. citizens.

The derivative spouse or children of people on the above list may also be included. Children must 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, based on their priority date drawn from when their I-130 petition was first filed.)

If you fall into one of the above categories, and your U.S. petitioner dies, you might be able to proceed with your immigrant petition if you meet certain conditions, including that:

• your Form I-130 petition is pending a USCIS decision or has already been approved by USCIS, or your I-485 adjustment of status application is pending with USCIS
• you were living in the United States at the time the petitioner died and continue to reside there on the date USCIS makes a decision on your application, and
• you find someone eligible and willing to act as your financial sponsor in place of your original petitioner (a substitute sponsor, as described below).

As you can see, if you are living overseas at the time the U.S. petitioner dies, the petition will be revoked and you will not be able to go directly forward with an application for a green card. (But a short visit abroad is not a problem.)

Who Can Serve as a Substitute Sponsor for an Immigrant

As mentioned above, someone immigrating under the Family Sponsor Immigration Act of 2009 will still need to prove that they aren't likely to become a public charge (and therefore inadmissible), in part by finding a substitute financial sponsor. 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 their 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 eligibility requirements apply to the substitute sponsor, as well. The sponsor 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. 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).

Getting Legal Help

If your petitioner has died and you still wish to immigrate to the United States, 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.