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My family member died. What is going to happen now with my adjustment of status petition?

Posted by Giselle Ayala Mateus | Jul 19, 2020 | 0 Comments

Many circumstances can affect an immigration petition. However, nowadays, the concern of many immigrants is the possibility of losing their family members as a result of COVID19. Unlike other U.S. residents, immigrants face the possibility of losing their loved ones and the risk of not being able to adjust their status or to remain in the country. Accordingly, many people ask: what will happen if my family member dies?

Immigration petitions will not end automatically if the petitioner dies. The following steps and the possibilities of success will depend on several factors, such as the relationship between the petitioner and the surviving relative (the “relative”), the place where the relative is located, the availability of a substitute sponsor, and the possibility of the relative going back to her country.

To seek an immigration benefit through a deceased petitioner, the relative must file a 204(l) petition. The result of the petition depends on whether the relative “qualifies”. USCIS understands that a “qualifying relative” is the person that, immediately before death, was the immediate relative or principal beneficiary of the deceased petitioner. In order words that a real relationship or eligibility basis existed. For purposes of this petition, the Immigration and Nationality Act requires that:

  • An I-130 petition has been already approved;

  • The surviving relative currently lives in the United States;

  • The surviving relative must offer evidence that she will continue living in the United States; and

  • The surviving relative can file her petition with a new sponsor.

Additionally, the odds of having the petition approved will depend on the quality and sufficiency of the evidence supporting the case. The time of the 204(l) petition is also taken into account. In the case of marriage-based petitions, if more than two years have passed, the petition will be rejected, and of course, if the relative remarries no petition can be filed. In the case of family-based petitions that are subject to a priority date, the petition can be affected by the number of visas available.

The final decision is discretionary. This is means that the immigration officer reviewing the case can always request additional documents, and he can deny the application if any of them are missing. It is necessary to show that there are more positive than negative factors weighing in favor of an affirmative decision by the immigration officer. For instance, evidence of extreme hardship can make a stronger case. However, if the Department of Homeland Security determines, in its discretion, that approving a petition would not be in the public interest, it may decline to provide relief.

Considering the strict requirements of 204(l) petitions as well as the current public policy discussions that the subject has generated, affected immigrants should consult an attorney before filing a surviving relative petition.

At the Law Office of Giselle Ayala, each case is evaluated independently and considering the particular circumstances of the client. If you need counsel do not hesitate in requesting a free consultation. The death of a relative is a devastating event, but it does not have to be the end of an immigrant's journey in the United States.

About the Author

Giselle Ayala Mateus

Giselle Ayala Mateus is a NY attorney with comprehensive experience in transactional law, creative agreements, business formation, and immigration law. She is also the founder of FOCUS a not-for-profit project focused on supporting entrepreneurs and artists.


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