Practice Areas
Associations
Permanent residence in case of petitioner’s death
Can someone obtain permanent residence in case of petitioner’s death? Under INA§ 204 (l), a beneficiary may still obtain permanent residence if:
1. The beneficiary resided in the U.S. when the “qualifying relative” petitioner died;
2. The beneficiary continues to reside in the U.S.;
And is at least:
1. The beneficiary of a pending or approved immediate relative visa petition;
2. The beneficiary of a pending or approved family-based visa petition;
3. A derivative beneficiary of a pending or approved employment-based visa petition;
4. The beneficiary of a pending or approved I-730;
5. A person admitted as a derivative “T” or “U” visa;
6. A derivative asylee; or the child of a VAWA self-petitioner where the parent filed a pending or approved petition or AOS
Special Notice
Remember INA 204(l) does not limit or waive any other eligibility requirements or adjustment bars that apply, other than the requirement for a petitioner or principal beneficiary. Therefore, the beneficiary must have been eligible to apply for adjustment at the time of filing and at final adjudication. In addition, the beneficiary must be admissible. Furthermore, a visa must be available, if applicable. Lastly, the beneficiary must not be barred from adjusting status.
INA 204(l) does not automatically waive any ground of inadmissibility that may apply to an adjustment applicant. The applicant must be admissible, or must obtain a waiver of inadmissibility or other form of relief available, before adjustment may be granted.
If the petitioner dies, the applicant typically must obtain a substitute sponsor to continue to be eligible for adjustment of status. A substitute sponsor is needed even if the deceased petitioner has completed the Affidavit of Support.
However, the death of the principal beneficiary has no bearing, by itself, on the sufficiency of the Affidavit of Support. In these cases, if the Affidavit of Support has not been filed but is required, then the original petitioner must still file an Affidavit of Support for the derivative applicants to be able to adjust.
