What happens when the beneficiary dies?

Dear Atty. Gurfinkel:

My husband was petitioned by his sister in the F-4 preference category (brother or sister of US citizen). We waited many years for the priority date to become current. Unfortunately, my husband passed away last year, leaving me and our three children on our own. I just received a letter from the National Visa Center, notifying us that the NVC is ready to start processing my husband’s immigrant visa.

Since my husband is dead, could we (me and our three children) still be processed for our immigrant visas? His sister is willing to cooperate, and will do whatever is possible so that I and our children can immigrate to the US.

Very truly yours,

N.R.

Dear N.R.:

Unfortunately, under US immigration law, when the principal beneficiary dies, the petition dies with him. The petition is automatically revoked, and the priority date is no longer valid for any derivative beneficiary (such as the principal beneficiary’s spouse and minor children).

While there are provisions in law allowing, in certain circumstances, to have the petition revalidated when the petitioner dies, no such "humanitarian revalidation" exists when it is the principal beneficiary (the one who was petitioned) who dies.

Even if the petitioner (your sister-in-law) is willing to cooperate, such as by filling out the forms, and submitting an affidavit of support, etc., there is simply no provision in immigration law allowing you or your children (as derivative beneficiaries) to be processed for an immigrant visa when the principal beneficiary (your husband) has died. This rule applies to all types of relative petitions (such as brother or sister of US citizen, married child of US citizen, etc.). Once the person who was originally petitioned (the principal beneficiary) dies, his family (who are derivative beneficiaries) can no longer benefit from that petition.

In your case, there may be other legitimate avenues by which you could immigrate. For example, if you are a college graduate, a skilled worker (i.e. working at a job that requires at least two years training or experience), or even an unskilled worker (such as caregiver), you might be able to immigrate to the U.S. through an employer’s petition, called labor certification. With labor certification, there must be a bonafide, legitimate job offer (or opening) by a financially stable employer in the US, and the alien has the education, training or experience to qualify the alien for that job. The processing of a greencard through labor certification might take about 4 or more years, but it is at least something that you and your family may wish to consider, if you are qualified and otherwise meet the legal requirements. You may wish to consult an attorney who will be able to assist you and your family to immigrate under this option.

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