Death and immigration  

This weekend we are celebrating the holy and “holi” days of All Saints Day and All Souls Day. It is this time of the year when we pay respects to our beloved departed. In a post-pandemic world, remembering and celebrating the life and memories of those friends and family who passed away is as poignant as ever. May their souls rest in peace.

Staying in the topic of death, what happens when your petitioner dies? Does the petition survive? Death, as the Bible says, comes like a thief in the night. We do not know when it comes and it does not favor nor discriminate anyone. It is the greatest equalizer.

In immigration law, death, as a general rule automatically revokes any pending petition. However, there are certain circumstances where even if the petitioner has already died, the petition can still be “resurrected” depending on several key factors and at what stage is the pendency of the petition. These key factors include whether the petitioner was a US citizen, whether the I-130 was filed or not, whether the I-130 was approved or not, whether there is an available substitute financial sponsor, whether the beneficiary has lived in the US or not. If you feel that you are in one of these criteria, you must make sure that you qualify and are eligible to proceed with the petition.

What about in those cases where you and your spouse jointly filed an i-751, Petition to Remove Conditions on Residence, and he died before the petition is adjudicated? You would have to notify USCIS and request to convert to a new I-751 with a waiver request. If you did not file yet, you simply have to file an I-751 with a waiver request.

In cases where the petitioner is also the sponsor who signed the Affidavit of Support, the beneficiary has to find a substitute sponsor who assumes the obligation of the principal sponsor. If the intending immigrant died, the sponsor’s obligations in the Affidavit of Support is also terminated.

Death of a loved one can also be used as ground for extension of stay, or emergency travel to and from the US. When you have a family member here in the US who is in imminent death you can request for an expedited interview appointment at the consulate.

Death or fear of being killed can also be a valid reason for seeking asylum if such death was a result of persecution on the basis of race, religion, nationality, political opinion, or membership in a particular special group.

There are many ways in which death can directly affect a pending petition. You must know when you must notify USCIS so that they would know if your category changed or if the petition has to be revoked. Make sure you seek professional legal help as this area could sometimes be very tricky and time bound.