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Does The I-130 Petition Die When The Petitioner Dies?

Does The I-130 Petition Die When The Petitioner Dies?

I just want to know if my petition from my father is still valid.
— Domagsang Jane

Historically, the rule is that the approved “petition dies with the petitioner.” Upon the death of the United States citizen petitioner, the approved I-130 petition is automatically revoked pursuant 8 Code of Federal Regulations section 205.1(a)(3)(i)(C) and the beneficiary must affirmatively request reinstatement of that revoked petition pursuant to 8 CFR section 205.1(a)(3)(i)(C)(2).  However, INA section 204(l) was enacted to help certain beneficiaries.  According to the United States Citizenship and Immigration Service (USCIS), “Section 204(l) of the INA can still apply to a case that was revoked, so the revocation does not mean that your case is over.  Rather, “revocation” and “reinstatement” simply provide a procedural mechanism that lets USCIS verify whether section 204(l) applies to your case and, if it does, to decide whether to exercise discretion favorably.  When the beneficiary requests and is granted section 204(l) relief, USCIS reinstates the approval of the petition, so that the beneficiary can continue the process of obtaining lawful permanent residence (Green Card). This is a technical difference because of how the law is written and other laws and regulations that existed before section 204(l) was enacted, but the outcome is the same:  when section 204(l) relief is requested and granted, the beneficiary can continue the immigration process. Processing times may vary, depending on where your file is located and other factors.  USCIS will consider the facts and humanitarian considerations of your particular case. If reinstated, then the beneficiary is able to file for adjustment of status to lawful permanent resident or consular process. If reinstated, then you will need to obtain a substitute sponsor who will need to file a Form I-864, Affidavit of Support.” 

When a petitioner’s visa petition is pending and s/he passes away, USCIS may continue processing the petition if the beneficiary requests and is granted section 204(l) relief. The beneficiary needs to make a written request to have USCIS apply section 204(l) to their case.

One very important requirement for section 204(l) to apply is that the beneficiary must prove that s/he resided in the United States at the time of the petitioner’s death.  According to USCIS, “You “reside” in the United States if your “residence” is in the United States and your residence is your primary home or your “principal actual dwelling place in fact, without regard to intent.” (See section 101(a)(33) of the Act.)  Furthermore, “Section 204(l) relief eligibility requires that someone must have “resided” in the United States; it does not require physical presence in the United States when the relative died. Residence is not interrupted by incidental travel. Events like a vacation, visiting family, or travel for work do not affect your eligibility for section 204(l) relief.”

Furthermore, when it comes to the affidavit of support (Form I-864) requirement, most immediate relatives and family-based immigrants are required to have it.  In some cases, the beneficiary’s work history or other factors may make Form I-864 unnecessary (see factors listed in 8 CFR 213a.2(a)(2)(ii)). In either case, the petitioner’s death does not change the way that the Form I-864 requirement applies to the beneficiary. If the beneficiary was required to have Form I-864 and the petitioner died, s/he must have either a new Form I-864 from a substitute sponsor or Form I-864W. To be a substitute sponsor, an individual must be a U.S. citizen, national, or lawful permanent resident; be at least 18 years old; and must be your spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.   

As is the case with all applications for lawful permanent resident status, the grant of such status requires a favorable exercise of discretion by the USCIS.  “Relief under section 204(l) is not an “entitlement,” but a matter that Congress has entrusted to DHS discretion. USCIS has discretion to deny relief under section 204(l) if USCIS finds that granting relief under section 204(l) would not be in the public interest. As with other forms of discretionary relief, exercising discretion means weighing positive factors against negative factors to make a decision. In addition to meeting the basic requirements for section 204(l) relief, your request must warrant a favorable exercise of discretion, meaning that the “pros” in granting your request outweigh the “cons.” However, USCIS knows that section 204(l) is intended to help people who were put in an unfortunate position because of a sad event that was beyond their control. The intent of the law is a very strong “pro” factor that weighs favorably in the exercise of discretion.”

There are other considerations when working with section 204(l) not mentioned above. Since this process can be very confusing and document intensive, you would be best served by consulting with an experienced, board certified immigration attorney to discuss the process and eligibility requirements.

Michael Shane and Evan Shane, Immigration Attorneys

Last reviewed on 1/31/2020