20 Mar When does a family based petition continue despite the death of petitioner?
It is important to know that a petition may continue despite the death of the petitioner under certain circumstances. This benefit came into law under Public Law 111-83 signed by President Obama and was incorporated in the Immigration & Nationality Act Section 204 (l). Under this new law, an alien may continue the processing of a family based petition if the alien seeking benefit:
- Resided in the United States at the time of death of the “qualifying relative” or petitioner.
- Continues to reside in the United States from the time of death of the “qualifying relative” or petitioner continuously up to the time of decision on the pending petition.
- Is at least one of the following in a family based petition:
1. The Beneficiary of a pending or approved immediate relative visa petition.
2. The Beneficiary of a pending or approved family based petition including the Principal and any derivative Beneficiaries.
Question: Is an Affidavit of Support Required for a Family Based petition?
Answer: Yes, an Affidavit of Support is required from another individual who qualifies as a “ Substitute Sponsor.”
Question : Who can qualify as Substitute Sponsor?
Answer: An individual may qualify as a Substitute Sponsor if she or he is related as spouse, parent, mother-in-law, father-in-law, sibling, child at least 18 years of age, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, and grandchild.
Question: Does the Surviving Relative need to be physically present in the US?
Answer: Yes. One of the most important condition of this new law is that it only applies to those surviving relatives who reside in the United States at the time of death of the qualifying relative and continuously reside in the United States up to the present.
Question: What should I do if I believe I am qualified for this immigration benefit?
Answer: You should consult with an experienced immigration attorney to represent you because the USCIS is very strict in implementing the new law. Our Law Office has successfully get approval on numerous cases where the petitioner has already died.
Note: This is not a legal advice.