Losing a loved one without warning can be hard enough to handle. Having to worry about your ability to stay in the U.S. and raise your kids after your U.S. citizen spouse has passed away can make an impossible situation feel overwhelming.  Looking forward to reuniting with your family but your US citizen parent passed away who was sponsoring you? Stuck outside the US now? Congress gets it, at least in limited situations. You may be able to keep your green card going and stop your life from imploding. 

Your U.S. Citizen Spouse Died But Had Never Filed Any Case for You.

If an Immigrant was married to a U.S. citizen (citizen at time of death), the Immigrant can file a self-petition within two years of his or her spouse’s death as long as the immigrant has not remarried. This immigrant visa petition can lead to a green card or U.S. permanent residency as long as the Immigrant is otherwise admissable (i.e., entered the U.S. legally or is consular processing, has received and applied for any immigrant visa waiver s/he is eligible for or needs to overcome unlawful presence, misrepresentation, or criminal issue that could affect green card issuance). 

Children under the age of 21 can also immigrate on this same petition. 

Your Immigrant Visa Case Was Approved with USCIS but Your Priority Date Was Not Current Yet When Your Sponsoring Relative Died. 

Humanitarian Reinstatement

If an immigrant beneficiary of an approved immigrant visa (that is waiting in line for a green card) filed by his or her U.S. citizen relative was living outside of the U.S. when s/he died, that visa is automatically revoked by the relative’s death according to the law. But the case can still be saved if the immigrant beneficiary still wants to come back to the U.S.   S/he would need to apply for “humanitarian reinstatement” of the Immigrant Visa petition filed by her relative.  This asks USCIS to reinstate the automatically denied petition so s/he can continue processing with the National Visa Center (Department of State) and interview abroad for his or her green card.

• The Immigrant Visa must be approved before petitioning spouse died

S/he will have to show that s/he has a substitute sponsor for the I-864 (Affidavit of Support) – a person who

1. is a US citizen or Lawful permanent resident and
2. is the immigrant’s spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild.  
3. This person must be willing to sign the I-864 and have filed federal tax returns in the last 3 years, make enough income to support her and whoever else is on their taxes, and has either assets or work to show that income; and
4. Must live in the U.S.  

The immigrant will also have to show that it is in the public interest to allow her to immigrate to the U.S. This is a discretionary case, based on the equities in the case. USCIS will consider factors including:

• Impact on family living in the United States if the immigrant is not allowed to immigrate (especially citizens, lawful permanent residents, or others lawfully present);

• The immigrant’s advanced age or health concerns;
• The immigrant’s prior Lawful residence in the United States for a lengthy period;
• The immigrant’s current ties or lack to home country;
• Other factors, such as unusually lengthy government processing delays; and
• Any and all other factors that weigh in favor of reinstatement, with supporting documentation.

Your Spouse or  Relative Filed an Immigrant Visa Petition for You, Which Was Not Yet Approved When Your Relative Died.

Under INA 204(l), visa petition beneficiaries may continue with the case as if the petitioner or principal beneficiary had not died. The following is required:

• Beneficiary must have been residing in U.S. and continue to reside here until decision on petition/application.
• (Beneficiary does not have to be legally residing in the US – i.e., does not have to have legal status)
• Visa Petitioner or principal beneficiary must have died when the petition or application was pending, not after it was approved. 
• Remarriage is ok (does not bar this benefit under INA 204l according to USCIS policy memo in 2015)

Other beneficiaries who could benefit from special immigration provisions under INA 204(l)  with the death of the petitioner:

• Widows of LPRs
• Children of LPRs
• Children of citizens
• Adult unmarried sons, daughters of citizens and derivatives
• Married children of citizens and their derivatives
• Parents of citizens
• Siblings of citizens and derivatives
• Spouses and children of asylees, refugees
• Derivative of principal T and U visa holders
• Derivatives when principal beneficiary dies in family and employment-based cases

Waiver Options:  Widows and Visa Beneficiaries Can Still Qualify for Inadmissability I-601 Waivers Despite the Death of the Petitioner or Qualifying Relative. 

If the Immigrant visa beneficiary satisfies the residency requirement under 204(l) or under the widow petition criteria, the immigrant can apply for an I-601 waiver, even though qualifying relative has died.  Usually, for an I-601 inadmissability waiver, the immigrant has to prove extreme hardship to their US citizen or Lawful permanent residency spouse if the immigrant’s waiver is not approved (this would waive crimes of moral turpitude, 10 year bar waivers for unlawful presence, and misrepresentation). But when the petitioner dies, the extreme hardship requirement is considered automatically met if the principle visa beneficiary is filing based on a widow petition or 2014(l) or humanitarian reinstatement. The waiver still has to be won on discretion, however. 

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