By Attys. Robert Reeves & Lorena Larios Shah
The death of a loved one is a tragic event in anyone’s life.Â The death of a petitioner in immigration law is a legal event that automatically revokes a visa petition.Â 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:
Disruption of an established family unit
Hardship to U.S. citizens or lawful permanent residents
Beneficiary is elderly or in poor health
Beneficiary has no home to go to
Undue delay by INS or consular officer in processing petition and visa
Beneficiary has strong family ties in the United States
In addition, on March 13, 2002, H.R. 1892 became Public Law 107-150.Â 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.Â 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.Â 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.Â 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.Â The Immigration and Nationality Act (Act) was amended with the passage of Public Law No. 111-83.Â Section 204(l) of the Act provides that an alienâ€™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 relativeâ€™s death and continues to reside in the United States.
The death of a loved one can leave a family feeling hopeless.Â 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.
Robert L. Reeves, who is board-certified, has been specializing in immigration law for 27 years. He has a national reputation as an immigration rights advocate and has successfully represented more than 18,000 immigrants at the CIS and hundreds more in the United States federal courts. He is licensed to practice law before the U.S Supreme Court, the U.S Court of Appeals for the Ninth Circuit, several U.S. District Courts and California State Courts. Reeves has represented clients in numerous landmark immigration cases that have set new policies regarding CIS action and immigrants’ rights. His many successes have been published in Interpreter Releases, Immigration Briefings and AILA Monthly, which are nationally recognized immigration periodicals widely read by immigration lawyers, State Department and immigration officials. His cases are also cited in textbooks as a guide to other immigration practitioners. His offices are located in Pasadena, San Francisco, Las Vegas and Makati City. Tel. no.: 1-800-795-8009; e-mail: firstname.lastname@example.org; website: www.rreeves.com.