Today's blog post deals with the difficult subject of the death of a petitioner for permanent residency. We know that navigating the complex world of immigration law can be a daunting task, especially when you are dealing with the emotional strain of losing a loved one. Today, we will answer a question that was posed by a prospective client during a consultation, "Does my approved I-130 petition die when the petitioner dies?"
The Fate of the I-130 Petition
Historically, the rule was that when the United States citizen petitioner passed away, the approved I-130 petition was automatically revoked. 8 CFR § 205.1(a)(3)(i)(C). However, a glimmer of hope exists for certain beneficiaries, thanks to the enactment of Section 204(l) of the Immigration and Nationality Act. According to the United States Citizenship and Immigration Service (USCIS), section 204(l) can still apply to a revoked case, ensuring that your immigration journey isn't over.
If the person who filed the I-130 petition is now deceased, the beneficiary can request relief under Section 204(l). If section 204(l) relief is granted, the USCIS reinstates the approval of the petition. This allows the beneficiary to continue their path toward lawful permanent residence (also known as a “Green Card”).
Processing times may vary, depending on your case's specifics and location, but USCIS will consider the unique circumstances and humanitarian considerations. If reinstated, you can file for adjustment of status to become a lawful permanent resident. It's important to note that in this process, you will need to obtain a substitute sponsor who must file a Form I-864, Affidavit of Support.
Requesting Section 204(l) Relief
If a petitioner's visa petition is pending and they pass away, USCIS may continue processing the petition if the beneficiary requests and is granted section 204(l) relief. This relief can be requested by submitting a written request to USCIS.
A crucial requirement for section 204(l) to apply is that the beneficiary must prove that they resided in the United States at the time of the petitioner's death. USCIS defines "residence" as your primary home or principal actual dwelling place in fact, without regard to intent. Importantly, section 204(l) relief eligibility does not require physical presence in the United States when the relative died.
Form I-864 and the Role of a Substitute Sponsor
Most family petitions require the beneficiary to show that they will not be a “public charge.” This requires the petitioner or another sponsor to show that they have enough income or assets to keep the beneficiary above the poverty level. If the petitioner has died, the beneficiary must find another US citizen or permanent resident who can meet those requirements. The substitute sponsor must complete and submit an affidavit of support by filing out Form I-864, showing that their income is enough to support their household and the sponsored immigrant.
Discretion and Section 204(l) Relief
Relief under section 204(l) is not an entitlement but rather a matter of discretion. USCIS has the discretion to deny relief under section 204(l) if it is not in the public interest. This means that the positive factors in your request must outweigh the negative ones, a balance USCIS carefully considers.
USCIS acknowledges that the purpose of section 204(l) is to assist individuals facing unfortunate circumstances beyond their control. The death of a petitioner such as a close family member is a strong "pro" factor that weighs in favor of exercising discretion.
Seek Legal Guidance
While we have discussed some essential requirements of section 204(l), this process can be intricate and document-intensive. To ensure that you are on the right path and meet all eligibility requirements, we strongly recommend that you consult with an experienced immigration attorney who can guide you through this challenging journey.
We hope this blog post has clarified some of your questions regarding the fate of your I-130 petition after the petitioner's passing. Remember that there is hope and a path forward, even in challenging circumstances. If you have any further questions or concerns, don't hesitate to reach out to us by completing the form at http://world1law.com/contact.html. We are here to help you through every step of your immigration journey.