What Happens To Your Application When Your Petitioner Dies?

By Published On: May 18, 2023Categories: Vlog, Family Based Immigration

Spanish Video Above Translated In English Below

In 2019, the United States welcomed over a million new legal permanent residents. In this group, 40% obtained their Green Card through family petitions. However, a crucial question arises: what if the petitioner unexpectedly passes away while the petition is in progress?

Amidst these uncertainties, understanding the indispensable role of a lawyer is paramount. They provide invaluable guidance and assistance to the affected parties during this challenging process.

Explore the various questions that arise when a petitioner passes away during the family petition process. Delve into these scenarios and shed light on the potential outcomes and legal avenues available.

When Fate Intervenes An Immigration Attorney Explains The Application Handling Post-Petitioner's Death

What Happens When A Petitioner Suddenly Passed Away?

This situation calls for an “it depends” answer. The outcome varies when a petitioner passes away during a family petition process. It ultimately depends on the circumstances involved and the beneficiary’s location.

If you already have an approved family petition, there is generally a way to proceed with the process. Through this, you can continue regardless of your location. However, if you are outside the United States when the case is still pending, there is no way to proceed further with the process. It is crucial to consider the timing and status of the family petition in such situations.

What if your petitioner didn’t file for you before they died? This unexpected turn of events may lead to you wondering about your options and the potential pathways available.

If Your Naturalized Parents Dies Before Filing For You

Suppose your naturalized parent passes away before initiating any filing. Your options for obtaining permanent residency are limited. In such cases, one viable route would be through VAWA. This is only provided you have endured cruelty or violence from a U.S. citizen parent. 

In this situation, you can independently file the petition. However, you must meet specific criteria. You should be a minor, under 21 years old, or have a valid reason for filing late. Moreover, you should have submitted the petition within two years after your parent’s demise. This makes the timing crucial to adhere to the deadline. 

Without any prior filing, you need to take alternative measures. VAWA petition offers a potential avenue, but it necessitates evidence of cruelty you suffered from your parent. This empowers you to initiate the petition independently, thus bypassing the lack of action by the deceased family member. 

What To Do If Your Petitioner Spouse Dies Amidst The Process?

In the unfortunate event of a spouse’s demise during the immigration process, distinct scenarios emerge. A viable path is available if the couple lived together in the United States or the immigrant spouse is already in the country with a filed or pending Form I-130. 

In cases where the petitioner passes away, the surviving spouse can navigate the case to apply for permanent residency. Though with some challenges, this route is relatively manageable.

Similarly, it is possible to progress if Form I-130 is approved, but the immigrant spouse has not yet acquired permanent residency. The approval of the form serves as a crucial marker in this context, enabling the continuation of the application process.

Facing a situation where your immigration paperwork stalls due to unexpected events, such as the death of a petitioner, can be challenging. While there are alternative options available if your parents were the petitioners, what if it was your sibling who filed the petition and they unexpectedly passed away?

What To Consider If Your Petitioner Sibling Suddenly Dies?

There are potential solutions if the sibling initiated the case before 2001 but unfortunately passed away, and the immigrant is present in the United States. If the request was made before 2001, there’s an option to adjust status within the United States. This method operates as a form of amnesty within immigration laws, and despite the sibling’s passing, it remains a viable avenue through the 245(i) program.

However, progressing through this process has its challenges. Typically, if the petition is solely from a sibling, continuing the immigration journey becomes complex. While feasible through the 245(i) program, navigating requires careful consideration and guidance. 

Despite the hurdles, it’s a testament to the resilience of the immigration system that avenues exist to honor familial connections amidst obstacles.

Yet, concerns may arise regarding your prospects for securing permanent residency. You may wonder: Does the passing of your petitioner impact your eligibility in this scenario?

Would The Death Of  The Petitioner Affect Your Permanent Residency?

A common question arises: “Would I encounter issues with my paperwork if I already have my Green Card obtained through a family petition, but the petitioner has passed away?” The good news is that if you already have your residency, there’s no problem in this situation.

In some instances, the immigrant might have received conditional residency. This typically occurs when a couple has been married for less than two years at residency approval. It results in conditional residency tied to a card valid for two years. With this, you must note that it is crucial to address these conditions before the card expires.

Even if the petitioner passes away during this two-year conditional residency period, there is a solution. To remove the conditions, you need to submit the death certificate of your spouse. The immigration authorities will then extend your residency to permanent residency in this specific circumstance.

Having a Green Card through a family petition provides a clear pathway forward. It ensures that even in the event of the petitioner’s passing, the immigration system accommodates the transition to permanent residency with the proper documentation.

While some individuals pass away due to natural causes, others may face unfortunate circumstances like a criminal attack. If such an incident involves your petitioner and leads to their untimely demise, you may be able to apply for a U Visa.

Navigating Petitioner Loss And Understanding The Fate Of Your Application

Is U Visa Applicable If Your Petitioner Dies From A Criminal Attack?

In the tragic circumstance where someone falls victim to a crime and subsequently succumbs to the attack, the surviving family members can seek recourse through a U Visa. As per U Visa laws, spouses and children under 21 of crime victims can be included as derivatives. However, it doesn’t stop there—witnesses to the attack can also be applicants.

Consider a scenario where the child of the deceased victim is a minor under 21. In this case, the child can be included as a derivative in the U Visa case of the parent. If the child is an adult but was present during the attack, they can either serve as a witness or apply for a U Visa. Their role in the process depends on their preference and eligibility.

If your parent was a crime victim and you meet the criteria as a family member or witness, you could be eligible for the U Visa case. This ensures that justice is sought for the unfortunate circumstances surrounding the attack.

The legal provisions surrounding U-Visas prioritize inclusivity. It acknowledges not only immediate family connections but also the pivotal role of witnesses in seeking justice and protection.

Summary

The passing of a petitioner presents various challenges and uncertainties for the beneficiaries. However, the outcome largely depends on the stage of the process and the beneficiary’s location at the time of the petitioner’s demise.

In some instances, there are alternative avenues to explore. Options like the Violence Against Women Act (VAWA) or the U Visa may provide pathways for beneficiaries. Affected parties need to seek the guidance of an immigration lawyer. The role of an attorney becomes indispensable in providing valuable support and clarity during these challenging times.

If you have additional questions about your immigration case, or your specific case, you may contact us at (855) 502-0555. After a brief 10-minute evaluation of your case over the phone, we will let you know what options you have. You can also follow us on our social networks so you don’t miss our weekly broadcasts on Facebook, YouTube and Twitch.

About the Author: Kate Lincoln-Goldfinch

I am the managing partner of Lincoln-Goldfinch Law. Upon graduating from the University of Texas for college and law school, I received an Equal Justice Works Fellowship in 2008, completed at American Gateways. My project served the detained families seeking asylum. After my fellowship, I entered private immigration practice. My firm offers family-based immigration, such as green cards and naturalization, deportation defense, and humanitarian cases such as asylum, U Visa, and VAWA. Everyone at Lincoln-Goldfinch Law is bilingual, has a connection to our cause, and has demonstrated a history of activism for immigrants. To us, our work is not just a job.

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