When the Petitioner Dies after the Petition has been Approved, What to do?
Michael Phulwani, Esq. and Dev B. Viswanath, Esq.
If an individual applies for a green card through a relative who is a Lawful Permanent Resident or US Citizen, but the Petitioner passes away before the application process is complete, the individual may still receive their green card, in some circumstances. The principal beneficiary may request humanitarian reinstatement of a petition only if the petition had already been approved before the death of the petitioner. Humanitarian reinstatement is a discretionary form of relief which means the positive factors for granting the petition must be significant.
There is no form or fee required when asking for humanitarian reinstatement. The primary beneficiary must make a written request with supporting evidence to the USCIS office that had originally approved the petition. If the beneficiary had already properly filed an application for adjustment of status with USCIS then the request for reinstatement should be sent to the USCIS office that has jurisdiction over the adjustment application. The request would normally include the following documents (but this is at a minimum):
- The name of the primary beneficiary and the deceased petitioner’s name;
- The receipt number of the petition;
- Death certificate of the deceased petitioner;
- A substitute sponsor;
- Proof of the substitute sponsor’s relationship to the beneficiary; and
- Any evidence showing that a favorable exercise of discretion should be given to the beneficiary.
If the beneficiary was required to have Form I-864 and the petitioner dies, the beneficiary must either have a new Form I-864 from a substitute sponsor or Form I-864W, for an exemption. The substitute sponsor must meet the following requirements:
- A U.S. citizen, national, or lawful permanent resident;
- 18 years old or older; and
- Be the beneficiary’s spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.
When deciding on whether or not to grant request humanitarian reinstatement USCIS considers many factors such as:
- If the beneficiary is elderly or in poor health;
- How long the beneficiary had resided in the U.S.;
- If the beneficiary has strong ties to their home country;
- The impact of revocation on the family living in the U.S., especially on the family who are U.S. citizens or lawful permanent residents or other relatives lawfully living in the U.S.; and
- If the beneficiary had waited an unusually long time for the case to be processed and the delay is because of the government.
If the humanitarian reinstatement request is granted USCIS will notify the beneficiary and send its decision to either the Department of State or to the USCIS officer processing the beneficiary’s adjustment case, if they are outside the U.S. If the humanitarian reinstatement request is not granted USCIS will notify the beneficiary in writing. USCIS’s decision cannot be appealed and therefore if denied the beneficiary will need to find a different way of getting an immigrant visa or green card. But, it also does not preclude the beneficiary from filing for reinstatement again, if more equities are discovered or if they have new legal counsel who may have the ability to present a stronger case than previously submitted. This is a great form of relief for people and families when they have already suffered the loss of a loved one.