Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
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In Death Of The Petitioner There Is Now Hope

Countless people have lost their opportunity to immigrate to the United States because their family member who petitioned them passed away while the intending immigrant waited for a visa. When a U.S. citizen or Lawful Permanent Resident wants to file a family based petition, they file form I-130 Petition for Alien Relative. Once this is approved the alien relative is given a priority date depending on the relationship to the petitioner and cannot obtain an immigrant visa until that date becomes current on the Department of State Visa Bulletin. Because there is such a large backlog it can take upwards of 15-20 years depending on the relationship and the country before a visa is available. The Philippines has one of the longest backlogs. With such a long wait, it is very possible that the petitioner could die before the intending immigrant can get a visa. Under U.S. immigration law the petition is automatically revoked upon the death of the petitioner family member. In some cases people who have waited for nearly twenty years lose their opportunity to immigrate because the petitioner passes away only weeks before a visa is available for them.

It is important to know that there is a way to keep the petition alive even after the death of the petitioner. The process is known as Humanitarian Reinstatement or Humanitarian Revalidation. For applicants residing in their home country, this process usually begins when immigration authorities are notified of the petitioner's death and the beneficiary is informed that the petition has been revoked. Without knowledge of Humanitarian Reinstatement many people give up hope and deem the petition lost forever. A request for humanitarian reinstatement must be submitted to the office where the petition was originally filed, such as the California Service Center. To be eligible the I-130 Petition for Alien Relative must be approved prior to the death of the petitioner.

The officer reviewing the request will consider several factors in deciding whether or not the petition will be reinstated. These factors are: (1) Disruption of an established family unit; (2) Hardship to United States Citizen or Lawful Permanent Resident; (3) Beneficiary is elderly or poor in health; (4) Beneficiary has lengthy residence in the United States; (5) Beneficiary has no home to go home to; (6) Undue delay by INS or consular office in processing petitioner and/or visa; and (7) Beneficiary has strong family ties in the United States.

In addition, the beneficiary must obtain a substitute sponsor who is willing to submit a new affidavit of support. Only a relative from the following list is allowed to become a substitute sponsor: the intending immigrant's U.S. citizen or permanent resident spouse, parent, mother-in-law, father-in -law, sibling, child (over 18), son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, or grandchild, or legal guardian.

A request for Humanitarian Reinstatement may also be made if the beneficiary of the application is currently residing in the U.S. In this situation the same factors will be considered in a written brief submitted to USCIS. It should be noted that this is a risk since the reinstatement is very hard to obtain, and the beneficiary could be referred to immigration court if the request is denied.

Recently a much better option emerged for those residing in the U.S. when the petitioner passes away. Under the new INA 204(l), a person can maintain their petition even after the petitioner has passed away. To qualify for this provision, the beneficiary must have resided in the U.S. at the time the petitioner family member passed away and continue to reside in the United States. This is a very big change and will without a doubt prove very beneficial to many people. Previously, if the petitioner died before the beneficiary could adjust status to a permanent resident the petition was automatically revoked and the only option was humanitarian reinstatement. Now, if the beneficiary lived in the U.S. at the time of death and continues to reside here they can maintain the petition and become a permanent resident.

Even more remarkable is that derivative beneficiaries are included in the new law. For example, if the principle beneficiary dies while the application is pending or after it is approved but before adjusting status, his wife and children would still be able to maintain the petition and become permanent residents if they resided here at the time of death and continue to reside here. To qualify under 204(l) the beneficiary must still otherwise qualify to adjust status and a person cannot simply wait in the U.S. for a visa to become available.

Humanitarian Reinstatement remains the sole option for those beneficiaries residing outside of the U.S. Anyone who may be affected by the new law or Humanitarian Reinstatement should contact an experienced immigration attorney.

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