There is hope after death of a petitioner
Some family-based immigrant petitions take years, even decades, before a visa is issued to the applying immigrant. Because of this prolonged waiting time, it is possible that the petitioner may die before the beneficiary gets his green card. As a rule, Immigration will automatically cancel or revoke an approved petition due to the death of the petitioner.
Fortunately, not all is lost. The beneficiary has some relief available to request reinstatement of the petition. In 2009, the immigration law was amended to allow beneficiaries of approved petitions who are present in the U.S. to proceed with the petition and apply for their green card even after the death of the original petitioner. To be eligible the following factors must be present:
- The beneficiary is present in the U.S;
- The petition was approved prior to the death of the petitioner;
- The beneficiary has a qualifying substitute sponsor.
For those living outside the U.S. at the time the petitioner died, they can request for “humanitarian reinstatement” of the petition. Under 8 C.F.R 205.1(a)(3)(i)(C), the Attorney General will not revoke a family-based petition upon the death of the petitioner where he “determines that for humanitarian reasons revocation would be inappropriate.” The beneficiary will have the burden of showing that the revocation of the petition will be inappropriate on humanitarian reasons.
The Department of State’s Foreign Affairs has provided a list of factors to be considered in evaluating requests for humanitarian reinstatement.
- Disruption of an established family unit
- Hardship to U.S. citizens or lawful permanent residents
- Beneficiary is elderly or in poor health
- Beneficiary has no home to go to
- Undue delay by INS or consular officer in processing petition and visa
- Beneficiary has strong family ties in the United States
In both cases of requests for reinstatement , the beneficiary must provide a substitute sponsor who will execute the affidavit of support (I-864) in the place of the deceased petitioner. In order for someone to be a substitute sponsor they must be related to the beneficiary in one of the following ways: Spouse, Parent, Mother-in-law, Father-in-law, Sibling, Child (if at least 18 years old), Son, Daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent or grandchild or legal guardian of the beneficiary.
The substitute sponsor must meet the minimum income requirements and be a U.S. citizen or legal permanent resident. Also, the surviving relatives must have resided in the United States at the time of the petitioner’s death and continue to reside in the United States. For the purposes of this law, “residence” in this case need not be lawful U.S. residence.
The laws highlighted in this article were introduced in an attempt to ameliorate some of the harsher and seemingly unjust consequences imposed on the surviving beneficiaries of petitioners’ past.
The death of a loved one can leave a family feeling disconsolate and lost. But there is always hope. Contact an immigration expert today to evaluate whether a request for humanitarian reinstatement or other legal recourse is available to you.