The death of a petitioner or applicant can have serious consequences on the outcome of an immigrant visa petition. The petition is automatically revoked, if the petitioner dies before the principal applicant (family member being petitioned) has immigrated to the United States. In such cases, the US consular officer will not issue a visa to any of the derivative beneficiaries of the petition and will return the petition to the USCIS. However, if there are compelling humanitarian circumstances a request could be made to the USCIS that approved the petition to request that it be reinstated for humanitarian reasons. Under certain circumstances, a consular officer may also recommend the USCIS to reinstate the petition. If USCIS reinstates the petition, the consular officer will contact the applicant(s) for further processing of the immigrant visa.
When the principal applicant dies, humanitarian reinstatement is not available to the spouse and minor children (derivatives) of the principal applicant even if the petitioner is still alive. In some limited situations the derivative beneficiaries could still be processed for permanent residency even though the primary applicant has died under the “Survivor Law” which could benefit the spouse and minor children of a deceased beneficiary’s family or employment-based petition. The requirements for such are that the applicant seeking the immigration benefit (such as derivative family members) resided in the United States when the “qualifying relative” (such as the principal applicant) died, and continues to reside in the United States on the date of the decision on the pending application; and the applicant is at least either a beneficiary of a pending or approved family-based immigrant visa petition, including both the principal beneficiary and/or any derivative beneficiaries; or a derivative beneficiary of a pending or approved employment-based immigrant visa petition.
Another requirement for eligibility is that a “qualifying relative” has died. USCIS includes the following as “qualifying relatives” who, immediately before death, was:
The petitioner in an immediate relative or other family-based immigrant visa petition;
The principal beneficiary in a widow(er)’s immediate relative immigrant visa petition;
The principal beneficiary in a widow(er)’s family-based immigrant visa petition; and
The principal beneficiary in an employment-based immigrant visa petition. If the principal applicant has already immigrated to the US and is a legal permanent resident when the petitioner dies, the derivative beneficiaries (usually the spouse and children of the principal applicant) are generally still eligible to apply for an immigrant visa. In this case, all the documents usually provided by the petitioner for the immigrant visa interview (the Affidavit of Support and its supporting documents like Federal US Tax Statements, W-2, etc.) must be provided by the principal applicant instead. The principal applicant could find an alternate sponsor. Please note that if the petitioner dies, providing documents from an alternate sponsor on the day of the interview the US consular officer will not reinstate the petition. In order to proceed with the case, the US Consulate must receive notice from USCIS stating the petition has been reinstated.