My Petitioner Died, Now What do I do?

Question: My father petitioned me 14 years ago and the visa number was very close to becoming current. However, last year he died. I heard there is no more petition. Is that true and is there anything I can do?

Answer: That is correct. Basically when the petitioner dies, so does the petition. Unfortunately from countries where the visa waiting to become current is so long like from the Philippines and China and Mexico, this happens too often. However, there is a solution. You can file what is known as a Humanitarian Reinstatement.

Question: What is a Humanitarian Reinstatement?

Answer: This is a type of petition whereby a application is prepared to ‘Reinstate’ the petition so that essentially, the petition actually revives and goes forward again even though the petitioner has died. It is a way of not losing all of the years that you have waited and still obtaining the Green Card or Lawful Permanent Residency.

Question: What is needed to show to do the Humanitarian Reinstatement?

Answer: Basically the Humanitarian Reinstatement package is put together with all the supporting evidence. The criteria in evaluating a request for Humanitarian Reinstatement include whether there is: (1) disruption of an established family unit; (2) hardship to USC’s or LPR’s; (3) a beneficiary who is elderly or in poor health; (4) a beneficiary who has had lengthy residence in the U.S.; (5) a beneficiary who has no home to go to; (6) undue delay by INS or consular officers in processing the petition and the visa; and (7) a beneficiary who has strong family ties in the U.S. Thus, there will be normally an attorney cover letter explaining why the person qualifies along with declarations, affidavits, evidence and all supporting exhibits.

Question: Is anything else needed.

Answer: Yes. A substitute sponsor is needed to show that the beneficiary will not become a public charge. Under the Family Sponsor Immigration Act of 2002, certain relatives (spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian) may be substituted to meet the affidavit of support requirements when the petitioning relative has died. In fact, even if none of these relatives are available, a request can be made for somebody else to be able be the substitute sponsor.

Thus, the Humanitarian Reinstatement is available and should be used. It is a shame if you waited all these years to immigrate to the United States only to be denied because of the unfortunate passing of the petitioner.I