Permanent Resident Status Despite the Death of the Petitioner

Dealing with the death of a close family member is one of the most difficult times of a person’s life.  This experience has the possibility of becoming even more challenging if the death results in the remaining family members no longer being eligible to immigrate to the U.S.  Until recently the Immigration and Nationality Act (INA) stated that an approved petition was automatically revoked if the petitioner died before the beneficiary was granted permanent resident status.  Though many considered this law to be harsh and inhumane, it was the law and there was little that immigrants could do about it.  However, the INA was recently changed in a way that is significantly more sympathetic to family members of the deceased.

Congress made the important and much-needed change to the immigration law by adopting Section 204(l) of the INA.  This section allows certain beneficiaries to still apply for permanent resident status (green card) if they are able to demonstrate that they meet certain eligibility criteria as stated in the INA.  In order to qualify under Section 204(l), the immigrant beneficiary must have resided in the United States at the time of the petitioner’s death, and must continue to reside in the U.S.  Prior to this important change, only certain widows and widowers who were petitioned by their U.S. citizen spouse were granted the opportunity to obtain permanent resident status after the death of the petitioner. 

The issue of “residence” if often difficult to establish.  This change in law does not allow an immigrant to qualify simply if they were physically present in the U.S. on the exact day that their relative passed away.  Rather, it requires that the immigrant was maintaining a residence in the U.S. at the time of the petitioner’s death.  Conversely, an immigrant beneficiary may still be eligible for adjustment of status if they were actually abroad when the petitioner died, so long as they can establish that they were “residing” in the U.S. at the time of the petitioner’s death.  This provision may prove useful for individuals who had been living in the U.S. when their family member passed away, but happened to be out of the country on the exact day when their relative passed away.  Both of these situations may be difficult to establish, and requires the presentation of sufficient documentation.

In addition, the beneficiary must also prove that they merit a favorable exercise of discretion.  This requires the submission of sufficient documentary evidence regarding an applicant’s good moral character, charitable contributions, etc.  Finally, Section 204(l) of the INA may also provide immigration benefits for more people than just the beneficiary named on the petition.  It may also allow the named beneficiary’s spouse and children to also be granted permanent resident status.

For those beneficiaries who are not eligible to apply for adjustment of status under Section 204(l) of the INA, they still have the opportunity to apply for “Humanitarian Reinstatement.”  As they do not benefit from the change in law, the petition naming them as the beneficiary is automatically revoked upon the death of the petitioner.  However, “Humanitarian Reinstatement” provides hope for those family members living abroad that waited patiently for their immigrant visa petition to become current. 

A request for “Humanitarian Reinstatement” is a request that the petition be reinstated on humanitarian grounds.  If the request is granted, then the beneficiary, and potentially his or her spouse and children, will be permitted to continue with the Immigrant Visa process and reunite with their remaining family members in the United States. 

The U.S. Department of State’s Foreign Affairs Manual provides a list of factors the USCIS should consider in evaluating requests for reinstatements.  These factors include whether there will be a disruption of an established family unit; any potential hardship to U.S. citizen or lawful permanent residents; if the beneficiary is elderly, has strong family ties to the U.S., or is in poor health with no home to go to, and whether there was an undue delay in the processing of the petition.

The death of a loved one can devastate a family and result in feelings of hopelessness.  But it is important to remember that immigrating to the U.S. may still be possible despite the death of your close family member. A qualified immigration attorney may still be able to immigrate a family member even after the death of the petitioner.