What Happens to a Green Card Application If the Petitioner Dies?

Losing a loved one is emotionally devastating. But for many immigrants waiting for a green card, that heartbreak also comes with legal uncertainty. What if the person who filed your petition—your spouse, parent, or sibling—passes away while your case is still pending? Will your petition automatically be denied? Will you be forced to leave the United States?

Fortunately, U.S. immigration law offers relief through two provisions (1) INA 204(l) and (2) “humanitarian reinstatement.” If you qualify, your immigration case doesn’t have to end with your petitioner’s death.

At the Law Office of Lina Baroudi, we help clients in San Jose and throughout California understand their options and fight to preserve their future in the United States—even after tragedy strikes. Here’s what you need to know.

The Old Rule vs. The New Law

Before 2009, the rule was strict:

If a petitioner died before the petition was approved, the petition died with them.

But this created enormous hardship for families, especially those who had already waited years for their visa priority date.

That changed with INA § 204(l), passed in 2009. This humanitarian provision gives USCIS the discretion to approve or reinstate certain petitions after the death of a qualifying relative, as long as certain conditions are met.

Who Qualifies Under INA 204(l)?

You may be eligible for relief under INA 204(l) if:

• You were residing in the United States when your qualifying relative died, and
• You continue to reside in the U.S. on the date your petition or application is decided, and
• You are one of the following:
  • A beneficiary of a pending or approved immediate relative or family-based immigrant visa petition
  • A derivative beneficiary of a pending or approved employment-based petition
  • A derivative T or U visa holder
  • A derivative asylee or refugee
  • A beneficiary of a Form I-730 (Refugee/Asylee Relative Petition)

Important: You do not need to have legal status to qualify. INA 204(l) focuses on physical residence—not immigration status.

What Is a Qualifying Relative?

A qualifying relative under INA 204(l) is the person who filed your petition or was the basis for your eligibility. This includes:

• A U.S. citizen or lawful permanent resident spouse, parent, child, or sibling who filed Form I-130
• A deceased principal beneficiary in a family- or employment-based case
• A deceased petitioner of a refugee/asylee petition (Form I-730)
• A VAWA self-petitioner
• A principal T nonimmigrant or asylee

USCIS considers the relationship as it existed immediately before the person’s death.

What Happens to the Petition When the Petitioner Dies?

Here’s what may happen after the death of the petitioner:

If the Petition Was Pending or Approved

You (the beneficiary) can request that the petition be approved under INA 204(l). You must submit:

• Proof of the petitioner’s death
• Evidence of your residence in the U.S. at the time of death and currently
• A written request for INA 204(l) relief

If granted, the petition is approved or reinstated despite the death.

Humanitarian Reinstatement – If the Petition Was Already Approved

HR is a totally separate process for approved I130s where the beneficiary generally lives OUTSIDE the US or otherwise doesn’t qualify for 204(l) – such as never resided in US.

The petition may be eligible for humanitarian reinstatement. This is different from INA 204(l), though the two can sometimes overlap.

To request humanitarian reinstatement, you must:

• Be the beneficiary of an approved family-based petition (Form I-130)
• Have a substitute sponsor for Form I-864, Affidavit of Support
• Write a request to USCIS explaining the circumstances

Note: Humanitarian reinstatement is only available for approved family-based petitions. It is entirely discretionary.

What About Adjustment of Status (Green Card Applications)?

If your Form I-485 (Adjustment of Status) was pending when your petitioner died, you can still be approved under INA 204(l) if:

• The underlying petition is (or becomes) valid under 204(l)
• You meet all standard eligibility requirements (like visa availability and admissibility)
• You continue to reside in the United States

Even if you hadn’t filed Form I-485 yet, you can still apply after the death as long as USCIS reinstates or approves the underlying petition under INA 204(l).

If your Form I-485 (Adjustment of Status) was pending when your petitioner died, you can still be approved under humanitarian reinstatement if:

• The underlying petition is reinstated
• You meet all standard eligibility requirements (like visa availability and admissibility)

What If You’re a Derivative Beneficiary?

Under INA 204(l), only one qualifying beneficiary needs to meet the U.S. residence requirement for the entire family unit (all derivative beneficiaries) to remain eligible.

For example, if you’re the child of the principal beneficiary, and the principal passed away—but you were living in the U.S. at the time—you may still qualify.

Under humanitarian reinstatement, the principal beneficiary needs to get the I-130 reinstated.

What About Affidavits of Support?

One tricky requirement involves Form I-864, Affidavit of Support. If your petitioner dies, you will still need a substitute sponsor—a U.S. citizen or lawful permanent resident who is:

• At least 18 years old
• Domiciled in the U.S.
• Related to you (spouse, parent, child, sibling, etc.)
• Willing to financially sponsor you

If no suitable sponsor is available, your application may be denied based on public charge inadmissibility.

Waivers, Inadmissibility, and Discretion

While INA 204(l) and HR do not waive other requirements—such as admissibility or bars to adjustment—it does allow for waivers in cases where hardship must be shown to a qualifying relative who has passed away.

For example:

• A waiver that typically requires “extreme hardship to a U.S. citizen spouse” may treat the death itself as sufficient hardship.
• This doesn’t guarantee approval, but it strengthens your case.

What If My Petition Was Denied After the Petitioner Died?

If your case was denied on or after October 28, 2009, and INA 204(l) could have applied but was not considered, USCIS is required to reopen the case on its own.

If your case was denied before that date, you can still file a motion to reopen, even if untimely, as long as:

• You were residing in the U.S. when your petitioner died
• You still reside in the U.S.
• You submit new evidence supporting eligibility under INA 204(l)

Should You Apply for Humanitarian Reinstatement or INA 204(l)?

• INA 204(l) applies when the petition is pending or approved, and you meet the residency requirement
• Humanitarian reinstatement applies only when a Form I-130 was already approved and is typically used without a residence requirement, but is purely discretionary

In many cases, both options can work together. Your attorney will determine which path gives you the best chance at success.

Your Immigration Future Doesn’t Have to Die with Your Petitioner

Losing a petitioner is overwhelming, but it doesn’t mean your immigration journey is over.

Whether you need help requesting humanitarian reinstatement, proving U.S. residence for INA 204(l), or finding a substitute sponsor, the Law Office of Lina Baroudi is here to guide you. We know how to navigate the complex immigration system with compassion, urgency, and strategy.

Contact us today for a consultation and protect your path to permanent residency.