Can you still Achieve a Permanent Resident Status?
If you’re applying for a green card based on your family relationship to a U.S. citizen or lawful permanent resident parent, child, or spouse, you may never have considered how the process would change in the event of their death. Unfortunately, this has become an increasingly common problem in the age of COVID-19. Although a sponsor’s death complicates the green card process, there are a few ways an applicant may be able to get around the issue and achieve permanent resident status.
Who Qualifies for Adjustment of Status After the Death of a Sponsor?
In the past, the death of a petitioner meant the end of the permanent resident process if the petition was still pending. As of 2009, provision INA 204(I) was added, which allows noncitizens to seek immigration benefits through a deceased qualifying relative if they meet one of the following criteria:
- » The applicant is a principal or derivative beneficiary of Form I-130, Petition for Alien Relative, and the petitioner died.
- » The applicant is aderivative beneficiary of Form I-130, and the principal beneficiary died.
- » The applicant is a derivative beneficiary of Form I-140, Immigrant Petition for Alien Worker, and the principal beneficiary died.
- » The applicant is a beneficiary of a pending Form I-730, Refugee/Asylee Relative Petition, and the petitioner died.
- » The applicant is a T-2, T-3, T-4, T-5, U-2, U-3, U-4, or U-5 nonimmigrant visa holder,and the principal T-1 or U-1 visa holder died.
- » The applicant is an AS-2 or AS-3 derivative asylee, and the AS-1 principal asyleedied.
- » The applicant is a derivative beneficiary for VAWA classification under Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, and the VAWA self-petitioner died.
- » The applicant is a derivative beneficiary of Form I-485, Application to Register Permanent Residence or Adjust Status, which was filed by a battered spouse or child under the Cuban Adjustment Act or the Haitian Refugee Immigrant Fairness Act, and the principal applicant died.
- » The applicant is a Conditional Permanent Resident (CPR) child of a CPR filing a waiver for the joint filing requirement for Form I-751, Petition to Remove Conditions on Residence (based on battery or extreme cruelty), and the CPR died.
To qualify for adjustment of status under INA 204(I), at least one of the beneficiaries must have been living in the United States when the qualifying relative died; the same beneficiary must continue to live in the United States while seeking adjustment of status. The decision is up to the discretion of the Department of Homeland Security, which may deny adjustment of status if the agency feels doing so wouldn’t be in the public interest.
What if My Spouse Passed Away Before Filing?
If your U.S. citizen spouse passed away before filing an I-130 petition on your behalf, you can self-petition as an “immediate relative” using Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
To qualify, you must have been married to the U.S. citizen spouse at the time of their death. If you were divorced or legally separated at the time, you would not qualify. In addition, you would lose eligibility to immigrate as a widow(er) if you got remarried prior to filing. The I-130 petition must be filed within two years of your spouse’s death.
Finding a Substitute Sponsor for the I864 Affidavit of Support Requirements
If your petitioner dies, you will still need to provide a valid and enforceable Form 1-864 Affidavit of Support,if it’s required. To be eligible for adjustment of status, you will need to find a substitute sponsor. This is required even if the petitioner completed the Affidavit of Support before they died.
The substitute sponsor must be:
- » At least 18 years of age
- » A U.S. citizen or green card holder
- » Either a spouse, parent, child, sibling, grandparent, in-law, or legal guardian of the immigrant
The substitute sponsor must meet the same income requirements as the original petitioner and be able to provide supporting financial documentation. In addition, they must file an Affidavit of Support on USCIS Form I-864. In the Affidavit, they must be able to show that their income is at or above 125% of the Federal Poverty Guidelines (or 100% for military families). By filing the I-864, the sponsor also promises to pay back any need-based public assistance the named immigrant may receive for the first 10 years of having their green card.
Getting Legal Help After the Death of a Sponsor
Coping with the death of a loved one along with an immigration case can be overwhelming; if your sponsor has passed away, it’s best to consult with an experienced immigration attorney. Ranchod Law Group can help determine whether you’re still eligible for a green card and help guide you through the appropriate application process. For more information, please contact our office at (916) 613-3553 to schedule a consultation, or email us at info@ranchodlaw.com.