What Happens to an Immigration Petition If the Family Sponsor Dies

Question:

I married to a U.S. citizen. He had filed Form I-130 for my immigration to United States, and now he is not in good health. What happens to my immigration petition If the family based immigration sponsor dies?

Answer:

If you are waiting to immigrate to the United States on the basis of a visa petition, filed by a family member who is a U.S. citizen or lawful permanent resident, that person’s death will certainly make the process more difficult.

But unlike in past years, when the visa petition always died with the petitioner, you may still be able to get a U.S. green card. Your success depends on your relative’s status in the United States, your relationship to him or her, where you currently live, and whether you have relatives in the United States who are willing to serve as financial sponsors for you.

If you were married to or the minor child of a U.S. citizen, you are in an especially good position to get a green card. Even if your U.S. citizen spouse died before filing the initial visa petition for you Form I-130 or before the petition was approved, you may be able to carry on and petition for yourself and your minor children.

You would file your visa petition on USCIS Form I-360 (Petition for Amerasian, Widow, or Special Immigrant). Unlike other family beneficiaries, you need not have an Affidavit of Support filed on your behalf. But there’s a deadline. You must file the petition no later than two years after the death of your U.S. citizen spouse. Also, remarrying before you are approved for your green card will destroy your right to it.