Q: My friend has been waiting a long time for her green card. Her brother filed for her a while ago, but he passed away. Can she still receive a green card?
A: The short answer is yes, it may be possible. It is an easier process if your friend lives in the US, but even if she does not live in the US, there is a chance she can get the green card. For the long answer, keep reading!
To begin, your friend’s brother is considered a petitioner since he filed an application for her, and your friend is a beneficiary of the application. Previously, the death of a petitioner meant that the beneficiary could no longer receive permanent residency (a green card) except in rare cases where DHS would agree to humanitarian reinstatement. This was referred to as the “widow’s penalty” as many surviving beneficiaries were widows after their petitioner-spouse passed away. Now there is relief available under INA section 204(l) in addition to humanitarian reinstatement. Below is a brief description of the two options.
204(l) relief for surviving relatives
204(l) relief may apply if your friend resides in the US. A beneficiary qualifies for 204(l) if the beneficiary (or in some cases spouses/children of the beneficiary) resided in the US when the petitioner died, and also continue to reside in the US on the date the petition is decided. This means the beneficiary’s primary home needs to be in the US. It is not required that the beneficiary was physically present in the US on the date of the death or approval. Short vacations outside the US will likely not interrupt residency.
For beneficiaries who did not live in the US at the time of the petitioner’s death, the only form of relief is asking DHS or DOS to grant Humanitarian Reinstatement. The beneficiary sends a letter requesting humanitarian reinstatement to the proper agency, depending on the stage of the immigration petition along with supporting evidence. DHS (USCIS) and DOS each have their own specific criteria to evaluating whether to award humanitarian reinstatement. An attorney could help prepare the evidence and letter for the proper agency. The final piece a beneficiary needs to submit is documentation for a substitute I-864 sponsor.