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Article: Form I-864, Affidavit of Support: What if the Petitioner Dies? By Gary Chodorow

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  • Article: Form I-864, Affidavit of Support: What if the Petitioner Dies? By Gary Chodorow

    Form I-864, Affidavit of Support: What if the Petitioner Dies?

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    Unfortunately, there are occasions when a petitioner who has filed a Form I-130, Petition for Alien Relative, dies before their relatives immigrate. It may still be possible to complete the immigration process. This article discusses how death alters the normal requirement that the petitioner file a Form I-864, Affidavit of Support.

    Widow(er) of a U.S. Citizen

    No I-864 is required to immigrate as the widow(er) of a U.S. citizen, although a Form I-864W, Affidavit of Support Exemption, should be filed.[1]

    To immigrate as a widow(er), a Form I-360, Petitioner for Widow(er),[2] must be filed within two years of the U.S. citizen spouse’s death, and must prove:[3]

    1. the couple was married (and not legally separated) at the time of the spouse’s death;
    2. the spouse was a U.S. citizen at the time of death (not necessarily during the whole period of the marriage);
    3. the widow(er) has not remarried before acquiring permanent resident status.

    The child of a qualifying widow(er) is also entitled to status as a derivative if accompanying or following-to-join the principal beneficiary.[4] No I-864 is required.[5]

    Surviving Relative Consideration

    In addition to widow(er)s discussed above, other beneficiaries of pending or approved I-130s who (a) resided in the United States at the time of the death of the petitioner and (b) continue to reside in the United States, may immigrate notwithstanding the petitioner’s death.[6]

    A “substitute sponsor” must file an I-864. The substitute sponsor must be a close relative of the beneficiary (e.g., spouse, parent, mother-in-law, father-in-law, sibling, child at least 18 years of age, son, daughter, daughter-in-law, son-in-law, sister-in-law, brother-in-law, grandparent, or grandchild) or a legal guardian.[7]

    Like any sponsor, the “substitute sponsor” must be[8]:

    1. a U.S. citizen, national, or permanent resident;
    2. age 18 or older; and
    3. domiciled in the U.S., including a U.S. territory or possession. (This can be satisfied by proving that the individual “will establish a domicile in the United States on or before the date of the principal intending immigrant’s admission or adjustment of status.”[9])

    Humanitarian Reinstatement

    I-130 beneficiaries who do not qualify for the above “surviving relative consideration” but whose petitioner died after the I-130 was approved and before permanent resident status was granted, may file a motion to reinstate the revoked I-130 based on humanitarian factors.[10]

    As part of the motion to reinstate the petition, an I-864 by a substitute sponsor should be included. The “substitute sponsor” here must meets the same requirements as in “surviving relative consideration cases.[11]

    Derivative Beneficiaries Following to Join the Principal Applicant

    A derivative beneficiary “following to join” a principal applicant means the spouse or child of the principal beneficiary of an I-130 who applies for an immigrant visa or is granted adjustment of status 6 months or more after the principal has immigrated.[12]

    Eligibility of derivative applicants seeking to follow-to-join a principal applicant who has already acquired lawful permanent resident (LPR) status is dependent on the continuing LPR status of the principal, not on the status of the petitioner.[13]

    Therefore, if the petitioner dies after the principal applicant has already become an LPR and one or more derivative applicants seek to follow to join the principal applicant, the derivatives retain eligibility to follow-to-join despite the death of the petitioner, and there is no need for reinstatement of the petition. In such circumstances, the derivative applicant seeking to follow-to-join needs an I-864 by any qualified sponsor, including the principal applicant who has already become an LPR.[14]

    For more about the Form I-864, see the Affidavit of Support Help Center, where you can read more, ask questions, and consult with an immigration lawyer.

    [1] Form I-864W Instructions at 2 (July 2, 2015).

    [2] If the widow(er) is the beneficiary of a pending or approved I-130 at the time of the U.S. citizen spouse’s death, the I-130 “converts” into an I-360. 8 C.F.R. § 204.2(i)(1)(iv).

    [3] INA §201(b)(2)(A)(i); 8 C.F.R. § 204.2(b)

    [4] 8 C.F.R. § 204.2(b)(4); 9 FAM 42.42 N5.1.

    [5] Memo from Donald Neufeld, Acting Assoc. Dir., USCIS, Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (REVISED), HQDOMO 70/6.1.1-P (Dec. 2, 2009).

    [6]INA § 204(l).

    [7]http://discuss.ilw.com/content.php?5431-Article-Form-I-864-Affidavit-of-Support-What-if-the-Petitioner-Dies-By-Gary-Chodorow

    [8] INA § 213A(f).

    [9] 8 C.F.R. § 213a.2(c)(ii)(B).

    [10]8 C.F.R. § 205.1(a)(3)(i)(C).

    [11] INA § 213A(f)(5)(B); 9 FAM 40.41 N6.4(a).

    [12] See 22 C.F.R. § 40.1(a)(1), defining an “accompanying” derivative beneficiary as one issued an immigrant visa within 6 months of the principal’s immigrant visa issuance or adjustment of status; 9 FAM 40.1 N7.1 (defining “following to join”).

    [13] If the principal has died or lost status, or the relationship between the principal and derivative has been terminated, there is no longer a basis to following to join. 9 FAM 40.1 N7.1.

    [14] 9 FAM 40.41 N6.4(b); 9 FAM 40.41 N10.2; AFM 20.5(d)(6)(B).

    This post originally appeared on U.S. & China Visa Law Blog.. Reprinted with permission.


    About The Author

    Gary Chodorow

    Gary Chodorow is a China-based immigration lawyer. He has helped clients with U.S. and China visas, permanent residence, and citizenship matters for more than 20 years. Gary also is a founding member of the American Immigration Lawyers Association's Asia-Pacific chapter, co-chair of the American Chamber of Commerce-China's visa committee, and adjunct professor of law at Chicago-Kent School of Law.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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