By Attorneys Robert L. Reeves and Lorena Larios Shah
The death of a loved one is a tragic event in anyone’s life. The death of a petitioner in immigration law is a legal event that automatically revokes a visa petition. However, there is hope for those family members living abroad that waited patiently for their immigrant visa petition to become current prior to the death of their family member. A humanitarian reinstatement request of an approved petition may allow a beneficiary to continue with the immigrant visa process and reunite with his/her family in the United States.
Under 8 C.F.R. 205.1(a)(3)(i)(C), the Attorney General will not revoke a family-based immigrant petition upon the death of the petitioner where he "determines that for humanitarian reasons revocation would be inappropriate."
The United States Department of State’s Foreign Affairs Manual (9 FAM 42.42 PN2) provides a list of factors the USCIS should consider in evaluating requests for reinstatements.
(1) Disruption of an established family unit
(2) Hardship to U.S. citizens or lawful permanent residents
(3) Beneficiary is elderly or in poor health
(4) Beneficiary has no home to go to
(5) Undue delay by INS or consular officer in processing petition and visa
(6) Beneficiary has strong family ties in the United States
In addition, on March 13, 2002, H.R. 1892 became Public Law 107-150. This law amended the INA by permitting an alternate sponsor for the affidavit of support if the original sponsor has died and the Attorney General has determined that the petition should not be revoked for humanitarian reasons. The amendment specifically permits the substitution of a close family member, i.e., the spouse, parent, mother-in-law, father-in-law, sister, brother, son, daughter, son-in-law, or daughter-in-law. As in the case of other financial sponsors, the sponsor must maintain an annual income equal to at least 125% of the Federal Poverty Guidelines. This law applies to deaths triggering visa revocation occurring before, on, or after the enactment of this law.
Where the beneficiary is living in the U.S. when the petitioner dies, a separate law may apply and allow a beneficiary to adjust status. The Immigration and Nationality Act (Act) was amended with the passage of Public Law No. 111-83. Section 204(l) of the Act provides that an alien’s application for adjustment of status shall be adjudicated “notwithstanding the death of the qualifying relative” if the alien resided in the U.S. at the time of their qualifying relative’s death and continues to reside in the United States.
The death of a loved one can leave a family feeling hopeless. But not all hope is lost. An immigration expert can evaluate whether a request for humanitarian reinstatement or adjustment of status pursuant to section 204(l) is proper.