Can a Family-Based Immigration Petition Continue After the Petitioner or Principal Applicant Dies?
Based on the USCIS Policy Manual, this article explains whether an immigration petition can continue after the petitioner or principal applicant dies. It covers the situations covered by INA 204(l), the requirement that the beneficiary actually reside in the United States, the rule that only one of multiple derivative beneficiaries need meet the residence requirement, the need to arrange a substitute financial sponsor, the conversion from conditional to permanent residence in marriage cases, and the discretion of immigration officers to deny a petition as not in the public interest.
Today a reader asked: "I filed a green card petition for my unmarried adult child, and the petitioner passed away while the case was pending. Can the child continue to wait?" The USCIS Policy Manual specifically addresses this issue; see here.
Summary
Congress passed INA 204(1) in 2009 [reference], which allows foreign nationals to continue their immigration petitions through a deceased relative under certain circumstances:
- The beneficiary was residing in the United States at the time of the relative's death.
- The beneficiary continues to reside in the United States when USCIS adjudicates the case.
Situations covered by the Act:
- In family-based immigration, if the petitioner dies, the beneficiary (including the principal applicant and eligible family members) may continue the immigration petition.
- In family-based or employment-based immigration, if the principal applicant dies, derivative beneficiaries (spouse and eligible children) may continue the immigration petition.
- Refugees, asylees, beneficiaries of T/U visas, etc.
Residence Requirement
When the relative dies, the beneficiary must reside in the United States until USCIS adjusts status. Immigration law defines residence as the applicant's "principal, actual dwelling place in fact, without regards to intent." As long as the beneficiary's actual dwelling place is in the United States, it does not matter if the beneficiary happens to be on a short trip abroad when the relative dies. The Act does not even require the beneficiary to have lawful status in the United States. However, if the beneficiary is deported, they will lose their actual residence in the United States and thus no longer be protected by this Act.
Derivative Beneficiaries
If there are multiple derivative beneficiaries, only at least one needs to meet the above residence requirement for the immigration petition to continue and cover all beneficiaries. The Act does not require all beneficiaries to meet the residence requirement. However, all beneficiaries must still satisfy other regular requirements, including not being inadmissible due to unlawful presence, etc., and still being subject to visa backlog processing.
- {https://gonglue.us/14973}
- {https://gonglue.us/14941}
Affidavit of Support
The beneficiary still needs to prove they will not become a public charge. If the petition originally required a financial sponsor and the petitioner/sponsor has died, the beneficiary must find another person to provide a financial sponsor. If the principal applicant dies, derivative beneficiaries still need to provide a financial sponsor.
- {https://gonglue.us/38873}
Conditional Green Card
In marriage-based immigration, if the petitioner dies, the beneficiary who would have received a conditional green card will receive a permanent green card.
- {https://gonglue.us/78829}
Immigration Officers' Discretion
In all the above situations, an immigration officer has the authority to deny the petition if they determine that approving it would not be in the public interest.
