Can I qualify for a green card despite the petitioner’s death?
Consider this common factual situation. You are over 21 years old and your US citizen parent petitions you while you are inside the United States. Since this is a preference category, you have to wait many years for your priority date to be current. As the years go by, your petitioning parent dies which in turn revokes the petition. Can you still apply for your green card when your priority date becomes current?
Under Section 204(l) of the immigration and nationality act, you may apply for a green card despite the death of the petitioner once your priority date becomes current as long as 1) you were in the United States at the time of the Petitioner’s death, and 2) you continuously resided in the United States until the present time when you apply for adjustment of status. This provision does not apply to beneficiaries that are outside the
pending Pe ons.
This avenue is available to all family based pe ons as outlined in INA sec on 204(l)(2). This includes 1) immediate rela ve pe ons and 2) preference family pe ons such as unmarried sons and daughters of us ci zens, spouses and unmarried sons and daughters of lpr, married sons and daughters of us ci zens, and brothers and sisters of us ci zens.
Deriva ve beneficiaries of pending or approved employment‐ based immigrant visa pe ons are also covered by this sec on. This includes the spouse and unmarried children under age 21 of an individual who was sponsored under the
If you fail to meet the requirements of INA 204(l) because you did not con nuously reside in the US since the death of the Pe oner, you may s ll try to reinstate the Pe on under 8 CFR Sec. 205.1(a)(3) Humanitarian Reinstatement. The DHS (Department of Homeland Security) may exercise discre on “for humanitarian reasons” to reinstate the pe on and to allow the Affidavit of Support requirements to be sa sfied by the qualifying I‐864 of a spouse, parent, mother‐ in‐law, father‐in‐law, sister‐ in‐law, brother‐in‐law, grandparent, or grandchild or legal guardian of the beneficiary, as long as the pe on was “approved” prior to the Pe oner’s death.
DHS discre on does not mean “guaranteed” approval. The case will be evaluated on a case by case basis. Some of the factors that the DHS may consider are 1) disrup on of an established family unit; 2) hardship to US ci zens or lawful permanent residents; 3) beneficiary is elderly or in poor health; 4) beneficiary has had lengthy residence in the US; 4) beneficiary has no home to go to; 5)undue delay by USCIS or consular officer in processing pe on and visa; 6) and Beneficiary has strong family es in the United States.
The beneficiary must be prepared to show proof of the original I‐130 that was filed, proof of I‐130 approval if approved, a copy of the Pe oner’s death cer ficate, proof of subs tute sponsor’s rela onship to the beneficiary, and meet all the I‐864 requirements.