By: Richard Hanus, Esq.
May 12, 2023
One of the questions I get asked most frequently has to do with the impact of a U.S. citizen or lawful permanent resident’s death on a pending petition they previously filed for foreign national family, whether waiting overseas or in the U.S. The answer varies depending on the circumstances, but many of my clients are pleasantly surprised to hear that not all hope should be lost.
As a matter of law, the death of a petitioning U.S. relative generally leads to the automatic revocation or discontinuation of the petition. However, remedies to reinstate the petition are indeed available. Most often its foreign nationals waiting in notoriously long visa lines, such as those for siblings or adult children of U.S. citizens. Other fairly common are scenarios involve the death of a U.S. citizen before their foreign spouse is able to receive their immigrant visa overseas or be approved for adjustment of status while awaiting processing in the U.S.
Spouse of Deceased U.S. citizen: For foreign nationals residing in the U.S. while awaiting processing, a remedy to reinstate or continue a process for a U.S. citizen’s widow or widower is almost always available and notwithstanding the timing of the citizen’s death. Regardless of whether US CIS has decided the underlying I-130 visa petition by the time of petitioner death, measures can be taken to request conversion of the petition from a spouse petition to a widow(er)’s petition and thus maintain a path to green card. This is the case regardless of whether the foreign spouse resides in the U.S. or overseas.
Other family members awaiting processing overseas: If the petitioned family member is overseas, and the I-130 visa petition on their behalf has yet to be approved by the time their U.S. family member dies, the petition will die and without any avenue of reinstatement. If the petitioning U.S. family member dies after the approval of their visa petition, an avenue known as humanitarian reinstatement can be initiated. For this process to succeed, the surviving, intending immigrant and an appropriate, substitute financial sponsor in the U.S. will have to request reinstatement and cite the presence of one or more factors in presenting their request. Key factors in this context include the impact of harsh consequences for: a family unit of U.S. citizen or lawful permanent resident relatives living in the United States, an elderly or infirm applicant, an applicant that lacks strong ties to their home country or who has waited an extended period for the process to be completed.
Other family members awaiting processing who are residing in the U.S.: If the petitioned family is residing in the U.S. at the time their U.S. petitioning family member dies, then an avenue to reinstate the petition is available and regardless of whether the petition was already approved by the time of death. Like the case of “humanitarian reinstatement” as discussed above, an appropriate U.S. substitute financial sponsor must be secured, but the standard for reinstatement is far easier to satisfy. More specifically, the petition is eligible for reinstatement if the parties can demonstrate that reviving the filing is not against the “public interest”. In other words, there would have to be some extraordinarily negative factors at play for the petition not to have a chance at reinstatement.
Reinstatement provisions for petitioned family residing in the U.S. also allow for reinstatement of a process when it’s the principal beneficiary of the petition (and not petitioning U.S. family member) who passes away. That means under certain circumstances, the surviving spouse and children of the petitioned foreign national (principal) who passes away may still have a chance to continue on the path to green card.
The ultimate outcome, including timing, of a successfully reinstated petition will depend on various additional factors such as whether following petition reinstatement a further wait for visa availability in a long-lined family category is at play. Also highly determinative is whether the subject petitioned family members in the U.S. at time of death are actually eligible to adjust their status in the U.S. as opposed to returning to their home country for processing, due to violations of their nonimmigrant visa status, or having no immigration status in the first place.
With so much emotion at play when it comes to family, death and immigration, it is important to separate hope from reality, and fact from fiction, as practical decisions depend on having a grasp on real facts about the laws and processes at play. A competent immigration attorney can help insure a clear headed and practical approach to the case is taken and otherwise enhance one’s chances of reviving a green card process following death of a petitioning family member in the U.S..
PUBLISHED May 12, 2023 – “IMMIGRATION LAW FORUM” Copyright © 2023, By Law Offices of Richard Hanus, Chicago, Illinois