During this time of year, we are often confronted with the memories of loved-ones that have died. At the same time, we remember those family members that are still in the Philippines because they were over 21 at the time the petition was approved, were married when the petitioner was a green-card holder, or were otherwise unable to come to the United States. Now, the previously approved petition has a current priority date and our relatives are ready to come, however, one major obstacle: the original petitioner has died.
Death of a petitioner, by operation of law, kills the underlying petition. But, the petition itself may be revived and reinstated provided that certain humanitarian factors are present. It is important to note that reinstatement only applies to petitions that were approved prior to the death of the petitioner. If the petition was filed, but not approved prior to death of the petitioner, the petition cannot be reinstated.
The procedure for reinstatement is rather simple, however, the information that must accompany the request is not. Since the reinstatement procedures are so new, both the statute, code of federal regulations and appropriate case-law, offer little if any guidance on what constitutes humanitarian factors. Thus, one is left with the guidance and direction offered by one's attorney concerning the same. Sometimes, expert witness examination and advisory opinions might be necessary.
Reinstatement applies to proposed beneficiaries who live both within and without the United States. Obviously, it will be more difficult to provide humanitarian reasons for processing the case for someone who has been separated from her family for quite some time. Alternatively, to prove hardship for one that has been with his family but might be separated if the petition not reinstated, is a less arduous obstacle to overcome.
In any event, supporting documents and declarations are necessary. Photographs are a must. Of equal, if not more importance, is the affidavit of support. Since 1996, all family based petitions must be accompanied by an affidavit of support. The petitioner must complete the affidavit, and if not financially qualified, enlist a co-sponsor. If the petitioner dies, however, he obviously cannot file the affidavit. So, what to do?
The intending immigrant can submit an affidavit of support from a substitute sponsor, unless one can demonstrate an exception to the affidavit of support requirements. These exceptions will not be discussed here. A substitute sponsor, however, must be at least 18 years of age, be a US Citizen or permanent resident, domiciled in the United States. And, they must make at least 125% of the federal poverty guidelines. More importantly, the substitute must be closely related to the decedent: said relations include most everyone except cousins. If the substitute sponsor does not qualify independently, or with income from live-in family members, the substitute can also enlist a co-sponsor.
Humanitarian reinstatement of petitions is a complicated and time- consuming process. During this time of year, when one is able to celebrate memories with their families, also take the time to reflect upon how you may help your family members that remain in the Philippines join their families here in the United States.