Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

I waited 15 years and now my petitioner died. Now what?

(For a Video on this subject, please goto http://www.youtube.com/watch?v=8yJ_ryMCGNU&feature=g-upl)

Question: My father petitioned me 15 years ago and it was just about current, but he just died. Now, what happens and can I still come to the U.S.?

Answer: Normally, when the petitioner dies so does the petition. Thus, when you would receive a packet from the National Visa Center stating that the visa petition is ready to process, you would not be able to proceed forward. They simply do not know that the petitioner has died. However, there is what is known as a Humanitarian Reinstatement.

Question: What is a Humanitarian Reinstatement?

Answer: As I have stated, the death of a petition formerly resulted in the automatic revocation of a family member’s petition. Under the Humanitarian Reinstatement, there are procedures for permitting family members in family-based and employment-based petitions to continue with their residency applications even if the applications had not yet been approved.

Question: What is the criteria for the Humanitarian Reinstatement?

Answer: Humanitarian Reinstatement Criteria—Under prior law if there was automatic revocation of the petition due to death, USCIS/DOS could grant humanitarian reinstatement. DOS criteria in evaluating a request for humanitarian reinstatement include whether there is: (1) disruption of an established family unit; (2) hardship to USCs or LPRs; (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.

Question: I heard something about a ‘substitute sponsor’. What is this?

Answer: This is a certain other family member who basically now would submit the affidavit of support in place of the deceased petitioner. 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 under INA §213A(f)(5), when the petitioning relative has died.

Question: Who is asked to reinstate the I-130.

Answer: The I-130 beneficiary must ask the Attorney General to reinstate the petition and must demonstrate that she has a substitute sponsor.

Question: What if you cannot find or do not have a substitute sponsor?

Answer: If a beneficiary does not have a qualifying relative, he or she may make an estoppel argument.

If the Humanitarian Reinstatement is granted, then the same priority date will be used and the petition will go forward as if the petitioner were still alive.

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