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Unfortunately, petitioner died and you are told or think that your petition is no more valid now, but that’s not the case, you still have chance to immigrate and get green card on your existing approved or even revoked petition. Wondering How? Contact us to know all the procedure and to get answers to the following questions.
What happens with your petition if your petitioner /Principal Applicant Dies?
Protect your family petition upon the death of the qualifying relative, that is, the petitioner or the principal beneficiary. According to the new law (by President Obama on October 29, 2009) both the principal and the derivative beneficiaries of a pending or approved I-130 visa petition (whether in the immediate relative category or one of the preference categories) are protected if the petitioner or the principal applicant die before the final adjustment of status application is arbitrated under certain circumstances. The death of an I-130 petitioner does not revoke the underlying petition and neither does the death of the principal applicant revoke the derivative beneficiary’s application if certain conditions are met.
Residence Requirement for Qualifying Beneficiaries
In order to qualify for this protection, the beneficiary of a pending or approved I-130 petition must have resided in the U.S. when the qualifying relative died and must continue to reside in the US on the date the decision on the pending petition or application is made. This does not mean that the beneficiary must have been physically present in the US when the qualifying relative died, but simply that the beneficiary’s actual residence was in the U.S. Additionally, if any one of the beneficiaries of a petition meets this residence requirement, then all the beneficiaries meet it as well. It is not necessary for each beneficiary to meet the residence requirement on their own. Therefore, if it is the principal beneficiary who has died, the petitioner may continue to seek approval of the petition so long as at least one derivative beneficiary meets the residence requirements. However, note that this does not give derivative beneficiaries any right to the petition. The petitioner continues to retain his or her right to withdraw the petition at any time. If an alien has obtained an adjudication of a petition under this new provision of the INA but does not qualify for adjustment of status, he or she may leave the U.S. to undergo consular processing.
The Affidavit of Support
The death of the qualifying relative does not relieve the alien beneficiary of the requirement to have a sponsor file the Affidavit of Support on Form I-864. Therefore, if the sponsor on the Affidavit of Support dies, another individual who qualifies as a “substitute sponsor” must submit a Form I-864 under INA § 213A.
Motion to Reopen a Humanitarian Reinstatement in Case of a Denial
For petitions or applications that were denied before that date due to the death of either the petitioner or the principal beneficiary, the surviving beneficiary may file an untimely motion to reopen with the proper filing fee and request that the pending petition or application be adjudicated according to INA § 204(l).108 Additionally, the CIS has found that it would be appropriate to reinstate the approval of an immediate- relative or family-based petition that was automatically revoked upon the death of the petitioner or the principal beneficiary before October 28, 2009, if the beneficiary was residing in the U.S. upon said death and continues to do so.109 Also, if a petition or application that should have been adjudicated in compliance with INA§ 204(l) was denied on or after October 28, 2009, CIS must reopen the case on its own motion for a new decision. If the beneficiary does not meet the residence requirement of the new INA rules, the CIS continues to have authority to reinstate the petition.
Note Regarding Previously Approved I-130's:
Prior to representation of this new provision in the INA, some courts were allowing widows and widowers of U.S. citizens to immigrate based upon an I-130 petition already filed by the deceased spouse, even though the petitioner died before the couple was married for two years.In light of the new law, CIS will honor those approvals and the subsequent adjustment applications and will not seek to withdraw a grant of adjustment based on the death of the U.S. citizen petitioning spouse.
Automatic Revocation of a Visa Petition
Pursuant to 8 CFR § 205.1(a)(1)-(3), approval of a visa petition for the relative of a U.S.citizen or of a permanent resident alien is automatically revoked backdated to the original approval date