One of the most frequently asked questions we run into concerns the legal ability of derivative family-based beneficiaries to immigrate if the principal beneficiary is not able to. The common context in which this occurs is when a principal beneficiary dies before his/her case becomes ripe and a visa granted. What happens to the principal beneficiary’s family members? Can they still immigrate to the United States even though the principal beneficiary is deceased? The short answer, unfortunately, is no. Derivative beneficiaries are literally that: derivatives, and their status derives or depends on the status of the main beneficiary. If the principal beneficiary is unable to qualify for a visa, then family members under him/her will also not be accorded visas. In the case of either the petitioner’s or beneficiary’s death, in fact, the I-130 petition for alien relative is automatically revoked.
This is not the same and should not be confused with what happens when a petitioner passes away. Although the petition is revoked upon death of the petitioner, there are certain situations in which the surviving beneficiary can request USCIS to restore the I-130 on the basis of humanitarian reinstatement per 8 CFR 205.1(a)(3)(i)(C)(2). Under this doctrine, USCIS will reinstate a previously cancelled I-130 upon a requisite showing of humanitarian reasons as well as a substitute sponsor who is ready and finally able to complete the I-864 Affidavit of Support in place of the deceased petitioner.
That being said, this is not the end of the story for derivative beneficiaries who survive the principal beneficiary. There may be an opportunity for derivatives to still qualify for permanent residence under section 204l, which is different than humanitarian reinstatement. Under 204l, a derivative beneficiary of an I-130 whose principal beneficiary has died may petition for relief if the applicant
· resided in the US at the time the relative died;
· the relative died while the I-130 was either pending, approved, or while an I-485 application to adjust status was pending;
· there are factors and circumstances warranting a favorable exercise of discretion
It is important to note that 204l only applies to individuals already inside the US at the time the relative died. Provided the applicant meets the criteria, the individual would presumably be filing within the US, although consular processing is still an option if the person is ineligible for adjustment but has secured 204l relief from USCIS.
To learn more about what options may be available to derivative beneficiaries of deceased petitioners or beneficiaries in a family-based context, please contact our office. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney.