Before 2009, the death of a petitioner or principal applicant during the application process could lead to the denial of the petition, resulting in an individual not being able to complete the processing of their green card application. However, in 2009, Congress introduced a rule allowing individuals to obtain immigration benefits even in the event of the petitioner or principal immigrant’s death.
Under this rule an officer has the authority to approve an adjustment application, specific petitions, and associated applications processed on or after October 28, 2009, under the following conditions:
- The applicant lived in the United States when the qualifying relative passed away.
- The applicant still resides in the United States at the time of the decision on the pending application.
- The applicant falls into at least one of the following categories:
- A beneficiary of a pending or approved immediate relative immigrant visa petition.
- A beneficiary of a pending or approved family-based immigrant visa petition, encompassing both the principal beneficiary and any derivative beneficiaries.
- Any derivative beneficiary of a pending or approved employment-based immigrant visa petition.
- The beneficiary of a pending or approved Refugee/Asylee Relative Petition (Form I-730).
- A person admitted as a derivative T or U nonimmigrant.
- A derivative asylee.
A qualifying relative, as defined by USCIS, refers to an individual who, immediately before their death, held specific roles, such as:
- The petitioner of an immediate relative immigrant visa petition.
- The petitioner or principal beneficiary of a family-sponsored immigrant visa petition.
- The principal beneficiary of a widow(er)’s self-petition.
- The principal beneficiary of an employment-based immigrant visa petition.
- The petitioner of a Refugee/Asylee Relative Petition (Form I-730).
- The principal person admitted as a T nonimmigrant.
- A VAWA self-petitioner.
- The principal asylee granted asylum.
To qualify for adjustment of status based on a deceased qualifying relative, an applicant must have resided in the United States when the qualifying relative passed away and must continue to reside in the United States. The definition of residence, according to the Immigration and Nationality Act (INA), emphasizes the “principal, actual dwelling place in fact, without regard to intent.”
In cases involving derivative beneficiaries, petition approval is feasible if at least one surviving beneficiary meets the residence requirement, even if the qualifying relative has passed away. All beneficiaries can then proceed to immigrate to the extent permitted if the qualifying relative were still alive.
Illustrating this in a practical scenario, consider an employer sponsoring an employee for an employment-based green card. If the employee, the principal beneficiary, passes away before the I-485 adjustment of status is adjudicated, the surviving spouse, acting as the derivative beneficiary, can still obtain their green card. This will be contingent on demonstrating that he/she was residing in the U.S. when the principal beneficiary passed away and continues to reside there.
In the above example, there is no need for the I-140 to be approved as an individual can benefit from this provision even if the underlying petition is pending.
Conclusion
In conclusion, while the death of a petitioner or principal beneficiary adds stress to an already challenging situation, USCIS acknowledges that, despite the subsequent death of a qualifying relative, a beneficiary remains eligible to receive their green card. However, please note that obtaining such an immigration benefit is discretionary and if USCIS finds that granting such benefit is not in the public interest they have the discretion to deny the green card.
While there is no specific form to request this benefit, a written request to USCIS should be made asking the agency to approve the petition, despite the death of your relative. If the petition was already approved before your relative died, the approval is automatically revoked. However, you can request USCIS to reinstate the approval so that you can continue the process of obtaining your green card.
If you have questions regarding the above, please contact PLG Partner Chris Prescott at cprescott@patellegal.com.