Moving Forward After Loss:  What Happens if the Petitioner Passes Away while the Case Remains Pending?  During the COVID-19 pandemic, families across the globe are facing loss in record numbers. Faced with this reality, many US citizen and Lawful Permanent Residents who have filed for loved ones now wonder: if my relative passes while applying for me, what happens then?  Does my petition pass away too?

Overview of Section 204(l) Relief

Years ago, the answer to this question was “yes.” Now, however, when the qualifying relative passes away before the applicant receives their green card, the law provides some new flexibility. This is regularly referred to as “section 204(l) relief.”

This flexibility exists only for certain groups:

  • Immediate Relative and Family-Based Visa Petitions (Form I-130): If the petitioner dies in a pending or approved family-based or immediate relative visa petition, 204(l) relief may be available for the I-130 principal beneficiary and any I-130 derivative beneficiaries. If the principal beneficiary dies, 204(l) may still be available for derivative beneficiaries.
  • Employment-Based Visa Petitions: If the principal beneficiary dies in a pending or approved employment-based visa petition, 204(l) relief may be available for any dependent beneficiary.
  • Refugee/Asylee Relative Petitions (Form I-730): If the petitioner dies in a pending or approved refugee/asylee-relative petition, 204(l) relief may be available the I-730 beneficiary.
  • Derivative “T” Nonimmigrants, Derivative “U” Nonimmigrants, and Derivative Asylees: If the principal individual admitted in T nonimmigrant status dies, the principal individual admitted U non-immigrant status dies, or the principal asylee who was granted asylum dies, 204(l) relief may be available for the derivative T nonimmigrant, derivative U nonimmigrant, or the derivative asylee.

Family-Based I-130 Petitions

Focusing particularly on immediate relative and family preference I-130 petitions , this flexibility only exists if the residency requirements and sponsor requirements are satisfied.

  • Residency Requirement. The applicant must have been living in the United States at the time the qualifying relative died and continue to live in the United States on the date that USCIS renders a decision on the application. The law defines residence as one’s “principal, actual dwelling place.” If the applicant was in the United States when the qualifying relative died and continues to reside in the United States, the applicant meets the residency requirement and may proceed with 204(l) relief. However, if the applicant is living abroad at the time of the petitioner’s death, or if the applicant is living abroad when USCIS issues the final decision, USCIS will revoke the petition with no option to reinstate.
  • Sponsor Requirement. The beneficiary/applicant must find someone eligible and willing to act as a substitute financial sponsor in place of the original petitioner. The substitute sponsor would need to meet the same income requirements as the original sponsor and provide the same forms of financial documentation for the Form I-864. The sponsor’s income or asset levels must meet at least 125% of the U.S. Poverty Guidelines for the number of people in their household plus the immigrant beneficiary.

The Immigration attorneys at Wilson Law Group are experienced in handling petitions and adjustment applications in these situations. If these issues pertain to your immigration case, please contact our team for a free consultation.