“Priority dates” are dreaded words to prospective immigrants. With most immigrant petitions whether it is family-based or employment-based, there is generally a waiting period for priority dates to become current meaning that a visa is available. Throughout the years, we have received multiple inquiries asking the questions: “My dad filed a petition for my brother in 2005 and has been waiting, but he tragically passed away recently. Is there something we can do? The answer is “Yes” but the strategy will depend on individual factors and circumstances.
WHEN THE BENEFICIARY IS OUTSIDE OF THE UNITED STATES
Traditional requests for humanitarian reinstatement of an I-130 approved family-based immigrant petition is available if you are the principal beneficiary. Derivative beneficiaries are not eligible to request humanitarian reinstatement; however, if USCIS approves the principal beneficiary’s request, any eligible derivative beneficiary may also benefit from the relief. USCIS will consider a request for humanitarian reinstatement by weighing the following factors:
- Impact on family living in the United States (especially U.S. citizens, lawful permanent residents, or others lawfully present);
- Advanced age or health concerns of the beneficiary or any following-to-join family members of the beneficiary;
- Lawful residence in the United States for a lengthy period;
- Ties (or lack thereof) to your home country;
- Other factors, such as unusually lengthy government processing delays; and
- Any and all other factors you believe weigh in favor of reinstatement, with supporting documentation.
Additionally, since family-based petition generally require an I-864 affidavit of support, there is also a requirement of a substitute sponsor to essentially take over sponsorship of the deceased petitioner. A substitute sponsor must be a U.S. citizen, national, or lawful permanent resident over the age of 18. The substitute sponsor also needs to be a spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.
These requests for humanitarian reinstatement are completely discretionary. However, for most applicants that have been waiting countless years to reunite with their family, it is a worthwhile request to seek favorable discretion to reinstate the petition of a deceased petitioner.
WHEN THE BENEFICIARY IS RESIDING IN THE UNITED STATES
Reinstatement of an immigrant petition is more favorable if the Beneficiary was residing in the United States at the time of Petitioner’s death. Principal and derivative beneficiaries may request reinstatement on an I-130 family-based petition. Unlike traditional humanitarian reinstatement, a derivative beneficiary may still request reinstatement if the principal beneficiary is deceased. To be eligible for relief under INA 204(l), at least one beneficiary must have been residing in the United States when the qualifying relative died, and the same beneficiary continues to reside in the United States at the time of seeking relief. The petition can also be pending and does not have to be approved unlike traditional humanitarian reinstatement. If a request is made regarding a family-based petition that requires an affidavit of support, a substitute sponsor is still required.
Additionally, INA 204(l) covers T or U nonimmigrant visa derivatives, derivative asylees and interestingly derivatives of an I-140 petition. Humanitarian reinstatement and INA 204(l) request for reinstatements have been widely used for family-based cases. However, it is seldomly used or known in employment-based settings.
SUCCESSFUL CASE OF REINSTATEMENT UNDER INA 204(L)
We recently obtained an approval of a case based on a reinstated I-140 petition via INA 204(l). The principal beneficiary and her family (husband and two children) were living in the United States with valid L-1A and L-2 visas. She was also the beneficiary of an approved I-140 petition in the EB-1C category as a multinational executive. Unfortunately, she passed away due to a sudden heart attack which left the family without their visas to lawfully remain in the United States. The family was getting ready to depart the U.S. and give up their life in the United States. However, the priority date suddenly became current for filing as the family was getting ready to depart the United States. The derivative spouse contacted me and consulted whether they had a chance to remain in the United States. We filed adjustment of status applications for their entire family and requested INA 204(l) reinstatement. At the USCIS interview, the officer was a bit perplexed as she has never seen a case requesting reinstatement of an I-140 employment petition. After my explanation and reviewing the regulations, she agreed that the derivative applicants were eligible to adjust but would need supervisor review. After over a year of “review” and inquiries, the derivative applicants finally adjusted to permanent residency. The client was very thankful that he and his children could continue their lives in the United States despite the tragedy of losing a family member.
Humanitarian reinstatement and INA 204(l) reinstatement are general concepts that could provide relief to surviving relatives seeking to immigrate. However, there are very specific eligibility requirements and nuances that needs to be followed to be successful in these requests. Therefore, it is imperative that surviving relatives seek legal professionals when attempting to submit these types of requests.
If you or your family encounters a situation where the petitioner or principal beneficiary passes away, please contact us for a free consultation. Wilner and O’Reilly’s lawyers have years of experience dedicated to immigration law. We have former immigration officials and board-certified specialists, so we offer extensive experience and knowledge to help you with the most complicated immigration cases.
At Wilner & O’Reilly, APLC, we offer free initial telephonic or virtual consultations so you can consult with us in the comfort of your home.
CHIEN-YU (MICHAEL) WANG – Managing Attorney – Sacramento
Chien-Yu (Michael) Wang is the Managing Attorney at Wilner and O’Reilly’s Sacramento office. He handles both family and business based immigration matters along with removal defense. Mr. Wang is admitted to the State Bar of California and the U.S. District Court for the Central and Eastern Districts of California. He is a member of the Los Angeles Country Bar Association, the Southern California Chinese Lawyers Association, the Sacramento County Bar Association and the Asian-Pacific Bar Association of Sacramento.
Committed to public interest, Mr. Wang volunteers his time at many community based pro-bono legal clinics. As an immigrant from Taiwan, he has gained valuable personal experience with the immigration system in the United States. Mr. Wang is fluent in Mandarin Chinese and conversant in Japanese.
RICHARD M. WILNER – FOUNDING PARTNER
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC, and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit, and the U.S. Supreme Court.Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs, and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.