Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
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Revalidation Of Petition After The Petitioner Dies

I write this article in recognition of a recent victory of our clients. Namely: after 21 years of waiting, which included the passing of their mother (the petitioner), permanent residence was finally approved. It was approved because the conscientious officer from United States Citizenship and Immigration Services was well aware as were we that the death of a petitioner no longer kills the petition provided that certain factors are met. Two of the most important factors are that the petition was approved prior to the petitioner's passing and that an immediate relative or sibling is willing to provide a new affidavit of support. ON the contrary, if the petition was filed, but not approved prior to death of the petitioner, the petition cannot be reinstated.

Although the filing procedure for revalidation is similar to that of a "normal" application for adjustment of status, the supporting information that must accompany the request is not. Since the revalidation procedures are still relatively 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. After all, that the end of the day, the decision on whether to grant one's application for adjustment of status is discretionary.

One need not be physically present in the United States to pursue revalidation. These cases may be processed at the consulate as well. As we all know, consular cases may be more cumbersome than a case at a local district office here. In my opinion, and as I have written before, good cases are won no matter what location. Not all cases are good cases. Similarly, not all lawyers are good lawyers.

Whether here or overseas we normally provide extensive supporting documents evidencing the humanitarian aspects of the case. While revalidation of the petition is automatic, approval of the visa or permanent residence is not. As noted above, the ultimate decision is a discretionary one.

Humanitarian reinstatement of petitions is a complicated and time- consuming process. Presumably, you have waited a very long time in order to move your case forward. If you have the opportunity to do so, make sure you choose the appropriate attorney to assist you.

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