MOST people are aware that if the petitioner (person who files a petition) dies, the beneficiary (family member being petitioned) may apply for humanitarian revalidation/reinstatement. If USCIS approves the request, the primary beneficiary and his derivative spouse and minor children could continue being processed for their green cards, despite the petitioner’s death.
However, if the principal beneficiary dies, humanitarian reinstatement is not available to the spouse and minor children (derivatives). Nevertheless, it could be possible in some limited situations that derivative beneficiaries could still be processed for green cards even though the primary beneficiary has died. This law (which I call the “Survivor Law”) could benefit the spouse and minor children of a deceased beneficiary’s family or employment-based petition.
Among the requirements are:
• the applicant seeking the immigration benefit (such as derivative family members) resided in the United States when the “qualifying relative” (such as the principal beneficiary or petitioner) died, and continues to reside in the United States on the date of the decision on the pending application;
• The applicant is at least one of the following:
• A beneficiary of a pending or approved family-based immigrant visa petition, including both the principal beneficiary and/or any derivative beneficiaries;
• A derivative beneficiary of a pending or approved employment-based immigrant visa petition;
Qualifying relative who died:
Another requirement for eligibility is that a “qualifying relative” has died. USCIS includes the following as “qualifying relatives” who, immediately before death, was:
• The petitioner in an immediate relative or other family-based immigrant visa petition;
• The principal beneficiary in a widow(er)’s immediate relative immigrant visa petition;
• The principal beneficiary in a widow(er)’s family-based immigrant visa petition; and
• The principal beneficiary in an employment-based immigrant visa petition.
Examples of cases:
1. A U.S. citizen petitions her brother, who has a wife and minor children. The brother (who was the primary beneficiary) dies, but the U.S. citizen petitioner is still alive. The brother’s wife is in the U.S. when he died and continues to live here. It could be possible for the wife and children to still be processed for immigrant visa under her sister-in-law’s petition, without seeking humanitarian revalidation, even though the primary beneficiary has died.
2. A person is being petitioned by an employer through PERM/labor certification. He has a wife and small children, and they are all in the U.S. The worker dies. It could still be possible for his wife and minor children to continue the case and get a green card through the employment-based petition of the deceased worker.
I want to emphasize that this law is complex, and there are many other eligibility requirements, such as having certain relatives to be substitute sponsors on an affidavit of support, whether the derivative beneficiaries are out of status, etc. That is why, if you believe you may be eligible, you should consult with an immigration attorney, who can evaluate your situation. My point is that in certain circumstances it could be possible for family members to still get green cards even though the principal beneficiary died.
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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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