By Attorneys Devin M. Connolly and Nancy E. Miller
Losing a beloved family member is very difficult. But for some prospective immigrants to the U.S., the death adds additional anguish when they learn that they are no longer eligible for permanent resident status (green card). This disheartening fact is because the Immigration and Nationality Act (INA) states that an approved visa petition is automatically revoked upon the death of the petitioner. Thus, the beneficiary of visa petition may no longer eligible to be granted permanent resident status.
However, this harsh and unnecessary immigration consequence has been eliminated for some beneficiaries. In an amendment that is significantly more sympathetic to family members of the deceased than the Act itself, certain prospective immigrants remain eligible to immigrate to the U.S. despite the death of their petitioner.
Congress made the important and much-needed change to the INA by adopting Section 204(l). This section allows certain beneficiaries to still apply for permanent resident status if they are able to demonstrate that they resided in the United States at the time of the petitioner’s death, and that they are continuing to reside in the U.S. at the time of their application for adjustment of status. The beneficiary may also be eligible if they can demonstrate that their spouse or child was residing in the U.S. at the time of the petitioner’s death. In fact, the spouse and children may be eligible to obtain permanent resident status together with the named-beneficiary.
The first issue that must be resolved surrounds the definition of “residence.” As stated above, the beneficiary of the visa petition must actually reside in the U.S. at the time of their family member’s death. They will not be eligible under INA 204(l) simply by being physically present in the U.S. on the exact day that their relative passed away. Rather, it is required that they maintained a residence in the U.S. at the time of the petitioner’s death. Again, this means more than that they own property here. They must actually live here. However, it is not required that they were physically present in the U.S. on the date of death. Thus, an intending-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 actually residing in the U.S. at the time of the petitioner’s death. In addition, the law does not require that they be legally residing in the U.S. at the time of death. Living in the U.S. without papers or with expired status is sufficient.
The beneficiary must also prove that they merit a favorable exercise of discretion. Essentially, it is a balancing test of positive and negative elements of the person’s life. Each element must be thoroughly discussed and documented. In the case of a negative aspect of one’s life (including overstaying a visa, misrepresenting in order to obtain a benefit or any criminal history), remorse and rehabilitation are essential. It is important to note that 204(l) provides that the deceased relative may still be a qualifying-relative for waivers of grounds of inadmissibility.
For those beneficiaries who are not eligible to apply for adjustment of status under Section 204(l), they may apply for “Humanitarian Reinstatement.” A request for “Humanitarian Reinstatement” is a request that the revoked petition be reinstated on humanitarian grounds. This process, while harder to obtain, still provides hope for those individuals that were living abroad at the time of their family’s member’s death. If the request is granted, 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 U.S. Citizenship and Immigration Service 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.
Unfortunately, for some prospective immigrants the death of a beloved family may also result in the elimination of their dreams of lawfully residing in the U.S. However, it is important to remember that immigrating to the U.S. may still be possible despite the death of your petitioner. An experienced and knowledgeable immigration lawyer can offer advice and practical solutions to being granted permanent resident status after such an untimely death.