Unfortunately, there are occasions when a US citizen or permanent resident dies during the process of filing a family-based I-130 green card petition for his/her relatives. The death of the petitioner brings not only sorrow to their relatives, but also issues with the immigration petition beneficiary. This article will discuss this particular legal issue and solutions to this problem.
1. The petitioner dies while the I-130 petition is still pending or after the I-130 petition gets approval.
If an I-130 visa petitioner dies before USCIS acts on the Form I-130, on the basis of precedence, USCIS must deny the Form I-130. However, the recent changes of the Immigration and Nationality Act (INA) bring potential resolutions to such an issue.
The Qualified Petitioner
The amended INA Section 204(I) permits the approval of a visa petition for an alien who is seeking an immigration benefit through a deceased “qualifying relative”.
In a USCIS Policy Memorandum released on December 16, 2010, which will apply to all cases filed on or after October 28, 2009,, those who meet the “qualifying relative” distinction will include the following:
· The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries;
· Any derivative beneficiary of a pending or approved employment-based visa petition;
· The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative Petition;
· An alien admitted as a derivative “T” or “U” nonimmigrant; or
· A derivative asylee under section 208(b)(3) of the INA.
Example: Old Kathy filed an I-130 family-based petition for her married daughter Carey. Carey had a little daughter named Cherry and wanted to apply a green card for her when filing I-485 under follow-to-join basis. Unfortunately, soon after that, Kathy was killed by a sudden heart attack and the I-130 petition was still pending at USCIS. Before the INA was amended, the I-130 petition for Carey would have been denied immediately after the death of Kathy, but now, there is still chance for her petition to get approval.
The Qualified Beneficiary
The beneficiary has to reside in the US when the qualifying relative dies; afterwards, the beneficiary’s US residence must continue.
Section 101(a)(33) of the Act governs the determination whether an alien “resided” in the United States when the qualifying relative died, and whether the alien continues to reside in the United States. A person’s “residence” is his or her “principal, actual dwelling place in fact, without regard to intent.” The statute does not bar an alien who was actually abroad when the qualifying relative died from proving that the alien still resides in the United States. Also, section 204(l) of the Act does not require the alien to show that he or she was, or is, residing here lawfully. Execution of a removal order, however, terminates an alien’s residence in the United States.
The Affidavit of Support Form I-864
Most family-based immigrants must have filed an affidavit of support, Form I-864, on their behalf that meets the requirements of INA section 213A and Section 568(e) of Public Law 111-83 made according to the amendment to INA section 213A(f)(5)(B) relating to the issue. After the death of a qualifying relative, if a visa petition is approved or not revoked under new INA section 204(I), then another individual who qualifies as a “substitute sponsor” must submit a Form I-864, Affidavit of Support under section 213A of the Act. If the alien is not required under sections 212(a)(4)(C) and 213A of the INA and 8 C.F.R. § 213a.2(a)(2)(ii) to have a legally binding affidavit of support, then there is no need for a substitute sponsor to submit a Form I-864.
Who Can Be the Substitute Sponsor
The substitute sponsor must qualify to be in a relationship with the beneficiary in these ways: 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, grandchild or legal guardian.
Also, the substitute sponsor must qualify under the requirement for “Sponsor” stated in INA 213A:
(A) is a citizen or national of the United States or an alien who is lawfully admitted to the United States for permanent residence;
(B) is at least 18 years of age;
(C) is domiciled in any of the fifty states, the District of Columbia, or any territory or possession of the United States;
(D) is petitioning for the admission of the alien under section 204; and
(E) demonstrates as provided in paragraph (6) the means to maintain an annual income equal to at least 125 percent of the Federal poverty line.
2. How To Continue the Petition?
· Generally, the beneficiary has to find a qualified substitute sponsor to file the Form I-846 Affidavit of Support.
· Next step, the beneficiary should prepare a statement, requesting the reinstatement of the petition. The statement should list the reason why the former petition warrants reinstatement, such as the new 204(I) ground introduced above or “humanitarian reasons” as a traditional ground for this issue.
· File these documents as well as other evidence to USCIS where the original petition was formally filed.
· Should this application get approval, the original petition will be reinstated.
3. The USCIS Discretionary Adjudicating Power.
Beside the traditional grounds for the denial of an I-130 petition, the USCIS will also have a discretionary ground to deny such a case, which makes the process more unpredictable. The new ground is claims “that [an] approval would not be in the public interest”. The “public interest”, of course, will be very subjective. However, the USCIS will consult an appropriate Headquarters Directorate before using this ground to deny a case, which shows that USCIS performs the denial of such a case with careful consideration. Nevertheless, this discrete exercise is not reviewable.
The issue may not seem overly complicated, but the presentation of the documents directed towards USCIS is crucial for the approval of the application. Although we cannot guarantee the success of such a case due to the discretionary power of USCIS, we still recommend that people confronting this issue should retain our professional immigration attorneys. Even if the application should fail, our attorneys will provide alternative solutions to minimize the damage to our clients.
 cf. Matter of Sano, 19 I&N Dec. 299(BIA 1985); Matter of Varela, 13 I&N Dec. 453(BIA 1970)