If you have a pending family petition to enter the United States, you might be wondering what will happen if the principal beneficiary or petitioner passes away and how this will affect your ability to obtain a visa. Read on to learn more about what options are still available for you to get your family petition approved.

Key Terms Referring to Petition Applicants

It’s important to understand that there are key differences between the principal beneficiary and the petitioner that can affect your ability to obtain a visa if one of them passes away. The petitioner is the U.S. citizen or Green Card holder, who is petitioning to bring their family members to the United States from other countries. The principal beneficiary is the primary beneficiary of the petition, for example, the spouse, sibling, or parent of the petitioner. Anyone else included on the petition is a derivative, as their status depends on the status of the principal beneficiary to obtain a visa. Derivative beneficiaries are usually spouses and children, depending on the type of family petition. 

If the petitioner dies, it is much easier to continue with the petition than if the principal beneficiary dies. The processes available differ for each scenario.

Death of a Principal Beneficiary

It is important to understand how processing a family petition can differ depending on whether the petitioner or principal beneficiary passed away. If the principal beneficiary dies, it is much harder for the derivative beneficiaries to continue with the petition than if the petitioner dies. This is because the derivative beneficiaries qualify for the immigration benefits they are applying for by virtue of their relation to the principal beneficiary and therefore lose that qualification if the principal beneficiary passes away. There are still options for derivative beneficiaries in the United States at the time of death under Section 204I of the Immigration and Nationality Act.

INA 204I

Prior to the passage of the Immigration and Nationality Act (INA), derivative beneficiaries were out of luck if the principal beneficiary passed away. Under Section 204I of the INA, derivative beneficiaries can continue their petitions if they are in the United States and meet all the eligibility requirements of the INA. If the derivative beneficiaries stay in the United States and complete all required steps in the process, they can proceed with the petition. Unfortunately, this option is not available to derivative beneficiaries outside the United States.

Death of a Petitioner

If the petitioner dies, it is generally easier to continue processing the petition. If the petition has already been submitted and the beneficiaries are already in the United States, then the beneficiaries can continue being processed for their Green Cards if USCIS approves the request. However, if the beneficiaries are outside of the United States, they will have to explore other options. Principal beneficiaries can apply for a discretionary process called Humanitarian Reinstatement, which is granted to eligible principal beneficiaries with an approved Form I-130. This form of relief is not available to derivative beneficiaries. If derivative beneficiaries seek to continue, they are unlikely to be able to from outside of the United States.

This is a common issue that arises, especially in the case of sibling petitions or parent petitions, and it may be challenging to understand what options you have. If you would like to learn more about how to complete a family petition if your petitioner or principal beneficiary dies, contact us for an assessment. 

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