How a Family Green Card Applicant Can Legally Enter the U.S. When Their Sponsor Dies Before Visa Approval
Sometimes the U.S. sponsor of a family-based green card application will die before the foreign national receives their visa. This does not necessarily prevent the foreign national from coming to the U.S. They may be able to benefit from special rules for foreign national spouses, or they may be able to reinstate their application if they can find a substitute sponsor. However, the substitute sponsor option applies only if the original sponsor dies after USCIS approves Form I-130. If the sponsor dies before USCIS approves Form I-130, a foreign national would need to restart the process from the beginning, unless they were a spouse of a deceased U.S. citizen.
One way to avoid this issue is to have multiple qualifying U.S. sponsors file a petition for the foreign national at the same time. If one of them dies, the petition by the other will remain in effect.
Widows and Widowers
If you are a widow or a widower of a U.S. citizen, you can apply for a green card within two years of their death if you had a bona fide marriage that was not designed to get a green card. You cannot apply for a green card if you have remarried or if you were separated from the U.S. citizen when they died. Any unmarried children under 21 can join you as derivatives.
I-130 to I-360
Widows and widowers of U.S. citizens may ask USCIS to change their I-130 petition to an I-360 petition or may file an I-360 petition themselves if their spouse did not file an I-130 petition before their death.
If the U.S. spouse filed the I-130 petition before they died, the foreign national spouse can move forward with applying for the visa once they inform USCIS of the U.S. spouse’s death. This will allow USCIS to change the I-130 petition to an I-360 petition, which is known as a self-petition. If the U.S. spouse did not file the I-130 petition before they died, the foreign national spouse can file the I-360 self-petition independently. A foreign national spouse who has legal status in the U.S. can use the adjustment of status process in most cases, while other foreign national spouses will need to use the consular processing system.
Materials submitted with Form I-360 must include the marriage certificate, the death certificate, the filing fee, and documents showing that the deceased spouse was a U.S. citizen. If the U.S. spouse previously filed Form I-130, the foreign national spouse must include the same documents but will not need to pay a fee.
A foreign national beneficiary may be able to have their application reinstated if another U.S. citizen or green card holder can serve as a substitute financial sponsor. They would need to submit Form I-864, which means that they will financially support the foreign national while they are in the U.S. so that they do not need government benefits. A substitute sponsor must have a certain type of family relationship to the foreign national. The sponsor can be a child of the foreign national as long as they are 18 or older. The same financial requirements apply to the substitute sponsor that applied to the original sponsor.
A foreign national may be able to get their petition reinstated if they can find a substitute sponsor (and possibly a joint sponsor).
If one sponsor cannot meet the requirements, the foreign national may be able to find someone else living in the U.S. who can serve as a joint sponsor. This person does not need to have a family relationship to the foreign national.
After the substitute sponsor has filled out Form I-864 and related documents, the foreign national can contact USCIS to request the reinstatement of their case. The reinstatement request will include Form I-864 and related documents, evidence showing the relationship between the foreign national and the substitute sponsor, evidence of the sponsor’s citizenship or green card, a copy of the approval for the original I-130, and the death certificate of the original sponsor. The foreign national must be able to state certain reasons for reinstating the application, which may include hardships caused to family members living in the U.S. You can send the reinstatement request to the office to which the original sponsor sent Form I-130.