9. PETITIONER PASSED AWAY
American citizen, and Legal Permanent Residents (Green Card holders), may file petitions (Form I-130) for relatives: spouses, parents, children (minors), sons or daughters (over 21, married or unmarried) and brothers and sisters. An approved petition is a requirement - without it an Immigrant Visa or a Green Card would not be issued. However, sometimes the process takes a long time - and sometimes a tragedy intervenes - and the petitioner dies before the Immigrant Visa or the Green Card is issued. What then?
The general rule is that when a petitioner dies - the petition is dead too. When the petitioner dies unfortunately the alien that has been waiting does not get an immigrant visa.
However, in 2009 Congress changed the law and provided some exceptions to the strict general rule. These are:
Beneficiaries of Family Based petitions (Form I-130), in any category, that were residing in the U.S. on the date that the petitioner passed away and continued to stay in the U.S. - can apply for Adjustment of Status (Form I-485 - Green Card) as if the petitioner was still alive. (It does not matter whether the petition was already approved or was still pending when the petitioner passed away).
Widows or widowers of American Citizen are covered by this new Survivors Law even if they were not in the U.S. on the date the petitioner died, and even if the American spouse never filed the required petition (Form I-130). They are required to file a self-petition (Form I-360) not later than two (2) years from the date that the American spouse passed away.
There are some additional classes that benefit form this Survivors Law to be checked with your lawyer.
The purpose of this law is to alleviate the hardship of spouses of deceased U.S. Citizen inside and outside the U.S. and the hardship to other surviving relatives of American Citizen and Legal Permanent Residents if they are in the U.S.