When the petitioner die?

Answer 1

Congress has approved a bill amending the rule that if the petitioner dies, the petition is automatically revoked. The bill is expected to be signed into law by President Obama soon.

The new legislation will provide relief to surviving spouses and surviving family members.

Surviving spouses will be able to file a self-petition for permanent residence even if they were married for less than two (2) years. Under the old law, they were deportable as only surviving spouses married for at least two years had the right to self petition.

Surviving family members will also be allowed to pursue their green card applications despite the death of their petitioning relatives provided they resided in the U.S. at the time of the death of the relatives and they continue to reside in the U.S. Under the old law, the said family members lost the Immigration benefit derived from the petition once the petitioner died.

Surviving family members covered under the new law include the spouse, parent and minor children of a U.S. citizen with pending or approved petitions and the married or unmarried son or daughter of a citizen, the spouse or child of a permanent resident and the brother or sister of a citizen, who have pending or approved petitions.

They also include the derivative beneficiaries of pending or approved employment-based petitions, the beneficiaries of pending or approved asylee/refugee relative petitions, nonimmgrants in T (trafficking victims) or U (crime victims) status and asylees.

The following example illustrates how the law will benefit the surviving family member.

A U.S. citizen parent petitioned his married daughter under the family-based third preference category. The petition is approved but because the wait time to get a visa number is long - 18 years in the case of a Philippine national - it is not uncommon that the petitioner dies. The petition or the daughter's application for adjustment of status and any related application will continue to be adjudicated notwithstanding the death of the petitioning parent unless the approval would not be in the public interest.

If the daughter dies prior to the interview, the derivative beneficiaries, meaning the husband and her minor unmarried children will continue with their adjustment of status applications.

Another example: An employer files an employment-based third preference petition on behalf of his employee but the employee dies before the immigration interview. His wife and daughter will be allowed to continue with their adjustment applications.

Beneficiaries who were abroad at the time of the death of the petitioner will not be protected under the new law but they will still be able under the old law to request humanitarian reinstatement. If their request is granted, the petition that was revoked upon the death of the petitioner will be reinstated.

Under the provision that will allow the filing of a self-petition by a surviving spouse, the law does not require that a petition had been filed by the deceased citizen spouse. But it requires the filing of the I-360 petition within two (2) years from the passage of the law. Unmarried children may be included in the self-petition.

If the surviving spouse is outside the U.S., he/she can apply for an immigrant visa abroad after the approval of the I-360 petition. If he/she is in the U.S., the I-360 can be filed together with the adjustment of status application. An affidavit of support is not required to be submitted although the applicant must still prove that he/she will not become a public charge.