Relief for Surviving Relatives

April 18, 2018

 

You may be eligible for relief from revocation of a family petition if your petitioner died before you were able to adjust your status under certain situations. The death of your petitioner who filed an I-130 Petition for Alien Relative for you as the beneficiary does not automatically revoke the petition because in 2009 the Immigration and Nationality Act was amended to add § 204(l). This section allows you to seek immigration relief from the death of your petitioner. There are no forms or regulations to § 204(l), but some qualifying relative requirements include that:

  • You were the principal or derivative beneficiary of Form I-130, Petition for Alien Relative (of a US citizen or resident), and the petitioner died; or

  • You were derivative beneficiary of Form I-130, (of a US citizen or resident), and the principal beneficiary died; or

  • You fit another qualifying relative category with the related visa (e.g., T-2, U-2)

 

Some other requirements include:

  • You find another sponsor for your Form I-864 under INA § 213A. The death of your relative does not relieve you from the sponsor requirement. You have to find a “substitute sponsor;”

  • You “reside” in the United States if your “residence” is in the United States;

  • Your residence is your primary home or your “principal actual dwelling place in fact, without regard to intent.” (See section 101(a)(33) of the Act.)

 

In other words, you must have resided in the US when your qualifying relative died and continue to reside in the US when the decision on the pending petition is made. However, this does not mean that you must have been physically present in the US when your qualifying relative died, but simply that your actual residence was in the US. Based on when your petitioner died (e.g., while your petition was pending, or after your petition was approved), you need to make a written request with supporting documentation of eligibility to a USCIS office.

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