New Legislation: Death of Petitioning U.S. Relative No Longer Means Death to the Immigration Process
April 26, 2002

INS regulations state that when a petitioning U.S. relative dies, so does the alien relative petition he/she filed on behalf of their foreign spouse, child, parent or sibling. The underlying policy being, since the basis of the foreign relative’s purpose in living in the U.S. no longer exists, consequently no good reason exists for the continued validity of the previously filed petition. Then again, however, INS regulations also recognize that extraordinary humanitarian considerations may justify the reinstatement of such a petition even though the petitioning relative is deceased. But in recent years, since the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the humanitarian reinstatement provision was without any practical effect since all family based immigrants were required, without exception, to present an Affidavit of Support executed by their petitioning relative at the time of their final immigrant interview, regardless of their income or lack thereof. Now, with legislation recently signed into law, applicants whose petitioning U.S. relative has passed away have a chance of proceeding and without meeting the impossible requirement of having their dead petitioning relative execute an Affidavit of Support on their behalf.

Under the terms of the new law, various relatives are now eligible to supply an Affidavit of Support IN LIEU OF the deceased petitioning relative, including the intending immigrant’s U.S. citizen or permanent resident spouse, parent, mother-in-law, father-in -law, sibling, child (over 18), son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, or grandchild, or legal guardian.

Given the fact that intending immigrants often wait many years for visa availability in several of the Family Preference categories, it is not uncommon for individuals to encounter situations where their petitioning relative has passed away by the time of the final step in their processing. However, to even get to the question of who will be supplying the Affidavit of Support in place of the deceased U.S. petitioning relative, the intending immigrant must initiate the procedure of reinstating the underlying petition.

For those outside the U.S, the issue is usually addressed when the intending immigrant appears for their immigrant visa interview at their nearest U.S. embassy or consulate. At that point, the interviewing U.S consular officer must be advised of the situation of the death of the petitioning relative and consequently, the applicant’s desire to have the petition reinstated. The consular officer will then write a report and forward the file back to the Immigration & Naturalization Service office that originally approved the underlying petition. From there, the INS will make its decision on reinstatement taking into account various humanitarian factors, including:

  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 had lengthy residence in the United States;
  5. Beneficiary has no home to go to;
  6. Undue delay by INS or consular officer in processing petition and visa; and
  7. Beneficiary has strong family ties in the United States.

If the petition is in fact reinstated, the file will be forwarded back to the consular post in question for further processing and if the applicant is otherwise eligible, for issuance of the immigrant visa.

If the intending immigrant is already in the U.S., consideration of the same humanitarian factors will take place at the time of the applicant’s adjustment of status interview (after a visa has already become available and an adjustment of status application was properly filed), although the stakes for applicants in the U.S. are much greater since they face the potential of being placed in removal/deportation proceedings should their efforts at reinstatement fail. On the other hand, if the applicant had accumulated more than 10 years of residence in the U.S. (in legal or illegal status) by the time of their interview, that applicant may still have a defense in removal/deportation proceedings after their request for humanitarian reinstatement has failed. On the other hand, again, their request may succeed, and they will be granted U.S. lawful permanent residence.

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