New York Lawyer's Legal Updates

Recourse For Widow(er)s After The Death Of The Beneficiary

Author: Green Card Attorney Alena Shautsova

We all know that life happens, and sometimes it happens unpredictably. It may occur that one who started the immigration process for his/her family members passes away and the beneficiary is left in the middle of a crisis unsure about his/her immigration status.

For situations like that, USCIS created special rules allowing certain beneficiaries who were petitioned by the now deceased persons to be able to continue with the Immigration process. In most such cases, the process would be referred to as Humanitarian reinstatement. Subsequently, the regulations were changed to benefit the requestors, but the process is still routinely called "humanitarian reinstatement" even when the actual standards for the relief are different from the originally outlined.

A humanitarian reinstatement is a reinstatement of a petition filed by now deceased petitioner because the petition gets automatically revoked once the petitioner passes away. What does a beneficiary need in order to be able to adjust status or get a visa even when the person who submitted the petition dies? The DHS establishes the following requirements:

  • The I -130 petition must be approved. If the petitioner dies while the I 130 is pending, the reinstatement is impossible.
  • If the I 864 is required, the beneficiary has to find a new sponsor with the following qualifications:
    • A U.S. citizen, national, or lawful permanent resident;
    • At least 18 years old; and
    • Your 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.
  • The requester has to demonstrate that the exercise of favorable discretion is warranted

The DHS regulation is 8 CFR 205.1(a)(3)(i)(C)(2).

Later, under INA 204(l) the petition can be still granted if the petitioner dies while the petition is pending when certain requirements are met, including residency requirement: US must be the requester’s primary home. The requester does not need to be physically in the United States when the petitioner dies.

There is also a special protection for widows and widowers outlined in the USCIS Policy Memorandum "Approval of a Spousal Immediate Relative Visa Petition under Section 204(l) of the Immigration and Nationality Act after the Death of a U.S. Citizen Petitioner." To wit, the policy states: "...a Form I-130 filed by a U.S. citizen for the U.S. citizen’s spouse becomes a Form I-360 if the U.S. citizen has died. The widow(er) becomes the visa petitioner, and generally does not need to rely on INA 204(l). USCIS has determined, however, that if the widow(er) was the beneficiary of a pending or approved Form I-130 when the original petitioner died and the widow(er) meets the residence requirements in INA 204(l), then INA 204(l) preserves the widow(er)’s ability to have a waiver application approved as if the now deceased U.S. citizen had not died. If the widow(er) remarries and then requests and obtains relief under section 204(l) and Williams v. DHS Secretary, 741 F.3d 1228 (11th Cir. 2014), the remarried widow(er) may also rely on INA 204(l) in seeking a waiver of inadmissibility. As with any other waiver application that is covered by INA 204(l), the fact that the U.S. citizen petitioner has died will be noted in the decision and deemed to be the functional equivalent of a finding of extreme hardship. But the finding of extreme hardship merely permits, and never compels, a favorable exercise of discretion. See Matter of Mendez-Moralez, supra. The widow(er) must still establish that he or she merits a favorable exercise of discretion.

It means that even in the worst case scenario, a beneficiary still has hope to retain eligibility for immigrant visa/adjustment of status in the U.S.

06 January 2016
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