By Attorneys  Devin M. Connolly & Nancy E. Miller

The death of a close family member is obviously a very difficult time in a person’s life. This is even more true when the death results in both the loss of a beloved family member and the loss of the potential to become a permanent resident status in the U.S. (Green card).  Under the Immigration and Nationality Act (INA), an approved visa petition is automatically revoked when the petitioner dies before the beneficiary is issued a green card.  The law is harsh but not absolute.  A person may still be able to get their green card despite the petitioner’s death.

Section 204(l) of the INA allows people to still be granted their green cards if they are able to demonstrate that they meet certain eligibility criteria as stated in the INA.  In order to qualify under Section 204(l) of the INA, the immigrant beneficiary must have resided in the United States at the time of the petitioner’s death and must continue to reside in the U.S.  Prior to this important change, 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.

The first issue that must be resolved surrounds the definition of “residence.”

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 have lawful status in the U.S. at the time of death.

There are also other requirements that must be established in addition to residence.  These including demonstrating that the beneficiary deserves a favorable exercise of discretion and that they have an acceptable substitute sponsor.  Finally, Section 204(l) of the INA may also provide immigration benefits for more people than just the beneficiary named on the petition.  It may also allow the named beneficiary’s spouse and children to be granted permanent resident status.

In some instances, the deceased family member was also the only or primary qualifying relative for a needed waiver of a ground of inadmissibility.  Section 204(l) allows the beneficiary to continue to pursue the waiver with the deceased family member as the qualifying relative.

Section 204(l) of the INA is clearly greatly 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.”

As stated earlier, the underlying petition is automatically revoked upon the death of the petitioner.  However, “Humanitarian Reinstatement” provides hope for those family members living abroad that waited patiently for their immigrant visa petition to become current.  A request for “Humanitarian Reinstatement” is a request that the petition be reinstated on humanitarian grounds.  If the request is granted, the beneficiary, and potentially his or her spouse and children, will be permitted to continue with the Immigrant Visa process and reunite with their remaining family members in the United States.

The United States Department of State’s Foreign Affairs Manual provides a list of factors the USCIS should consider in evaluating requests for reinstatements.  These factors include, but are not limited to, whether there will be a disruption of an established family unit; any potential hardship to U.S. citizen or lawful permanent residents; if the beneficiary is elderly, has strong family ties to the U.S., or is in poor health with no home to go to, and whether there was an undue delay in the processing of the petition.

The death of a loved one can devastate a family.  And, for some prospective immigrants, the death may also threaten to further tear apart the family unit.  But it is important to remember that immigrating to the U.S. may still be possible despite the death of your close family member.  Anyone who has lost a petitioning family member prior to obtaining their green card should consult a knowledgeable and experienced immigration attorney to find out whether they can still obtain lawful permanent residence.

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