By Attorney Devin M. Connolly
Losing a beloved family member is one of the most difficult times in a person’s life. And this tragic event can become even more heartbreaking if it also means that you also lose the privilege of being granted permanent resident status in the U.S. (green card). This additional upsetting element is because the Immigration and Nationality Act (INA) says that an approved visa petition is automatically revoked if the petitioner dies before the beneficiary is issued a green card. However, despite this automatic revocation, a person may still be eligible for their green card despite the petitioner’s death.
First, Section 204(l) of the INA says that people may still apply for their green cards from within the U.S. in certain situations, a process called “adjustment of status.” Section 204(l) requires the foreign citizen attempting to obtain their green card to prove 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. The ability to still be granted a green card because of your residence in the U.S. is a major benefit to many immigrants. Previously, only certain widows and widowers who were petitioned by their U.S. citizen spouse were granted the opportunity to obtain permanent resident status after the death of the petitioner.
How does a person meet the “residency” standard? 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. However, it is not required that they were physically present in the U.S. on the date of death. Thus, an 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. It is also important to note that the law does not require that they be legally residing in the U.S. at the time of death.
In addition to residing in the U.S., the beneficiary must also demonstrate that they deserve a favorable exercise of discretion and also that they have an acceptable substitute sponsor. The INA does not permit anybody to serve as a substitute sponsor. Rather, the INA provides a list of possible family members that may serve as a substitute sponsor, such as sibling, child, etc.
Section 204(l) of the INA is obviously beneficial to many people. Unfortunately, though, not everyone qualifies. For those beneficiaries who are not eligible to apply for adjustment of status under INA 204(l), they still have the opportunity to apply for “Humanitarian Reinstatement.”
“Humanitarian Reinstatement” provides hope for those family members living abroad that waited patiently for their opportunity to immigrate to the U.S. A request for “Humanitarian Reinstatement” is a request that the petition be reinstated on humanitarian grounds. If the request is granted, then the beneficiary and their spouse and children will be able to continue with the Immigrant Visa process and will be able to reunite with their remaining family members in the United States.
The U.S. Citizenship and Immigration Service will consider several different factors when making a decision on a request for “Humanitarian Reinstatement.” These factors include potential hardship to U.S. citizen or lawful permanent residents; whether there will be a disruption of an established family unit; whether the beneficiary is elderly, has strong family ties to the U.S., or is in poor health; and whether there was an undue delay in the processing of the petition.
It is undeniable that the death of a loved one can devastate a family. And for some prospective immigrants the death may also make it more challenging for them to obtain a green card. But it is important to remember that immigrating to the U.S. may still be possible despite the death of your close family member. An immigration expert can offer advice and practical solutions to being granted permanent resident status after such an untimely death.
