Published: July 10, 2013
In the past, basic immigration law doctrine dictates that when a petitioning relative dies before their petitioned relative(s) obtains their immigrant visa or resident status, the petition also dies. That is, an I-130 family based visa petition filed on behalf a relative becomes without effect, or is automatically revoked, upon the death of the U.S. citizen, or lawful permanent resident petitioner. With the enactment of various reinstatement provisions however, death of a petitioning family member is NOT necessarily the end of the story. That is, depending on the circumstances, the petitioned family may rightfully continue to hold out hope of getting their green card.
Widows and widowers of U.S. citizens, regardless of whether they are in the U.S. at time of petitioner death, and whether a petition had even been filed, have a special section of law that allows for the pursuit of immigration benefits. A variety of requirements are at play for this process, including that immigration benefits be pursued within 2 years of the petitioning spouse’s death.
For other family based visa petitions, if the petitioner dies before the petitioned family member(s) obtain(s) their immigrant visas or adjusts status in the U.S., the process can be revived, or reinstated, although the standard of proof is more difficult if the petitioned relative resided abroad at the time of the petitioning relative’s death.
If petitioned relative was abroad at the time of the petitioning relative’s death, then the family must seek reinstatement of the petition based on humanitarian grounds, where a variety of hardship factors are considered, including existence of family ties in the U.S. and medical issues.
If the petitioned relative is residing in the U.S., including at the time of the petitioning relative’s death, the pursuit of immigration benefits involves an easier standard of proof, wherein the family must demonstrate that it is merely in the public interest for the petition to be reinstated. For many such family members in this category though, their ability to ultimately process their permanent residence in the U.S. may also depend on whether they have maintained their immigration status, or if not, whether they qualify to adjust their status pursuant to INA section 245(i).
Other scenarios where reinstatement may be a solution involves not the death of the petitioning relative, but the death of the petitioned relative (or beneficiary of a visa petition), and where that relative’s spouse and/or under 21 year old children still wish to pursue U.S. resident status.
Additionally, surviving relatives in most of the above scenarios will be required to find a substitute sponsor to execute on an Affidavit of Support, as would have been required of the now deceased petitioning relative.
Given all the variations and requirements at play in the processes outlined above, it is imperative that surviving family members consult competent, trustworthy immigration counsel so that eligibility and prospects for success under the law are properly assessed and thoroughly understood.
PUBLISHED July 10, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois