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Revalidation of visa petitions possible after death of petitioner

(Paul Choi is an immigration attorney and professor of law located at 16000 Ventura Blvd. Ste 1201, Encino, CA. 91436.  Atty  Choi will answer all questions regarding immigration and naturalization for free. Address questions to pchoi@pchoilaw.com or telephone 818 714-2226.  Atty Choi is pleased to announce that his administrator is Philip Abramowitz who has 30 years of experience in immigration law.)

Question:  My father filed immigrant visa petitions for myself and my brothers. I was able to immigrate a few years ago but my brothers did not immigrate because they were married and the quota was not yet available.  Last year my father died before my brothers could obtain their greencards.  We received a letter last week from the National Visa Center asking my brother to pay $404 filing fee to secure his visa.  I told him to pay the fee so he could have his interview but now I am worried that he may not be able to come since dad died.  Is this true?  I heard that there was a law passed recently that let children revalidate and reinstate petitions filed by a parent that had died. Is this true?  How do we go about this?  Should my brother pay the filing fee now? Please help us.

Answer:  You are correct in understanding that when you father died, unfortunately his petition for your brothers died with him. The immigration act has always stated that a petition is automatically voided upon the death of the petitioner.  There have been some exceptions in the past but those only dealt with widows of U.S. citizens who were married at least two years before the citizen petitioner died.

To address the long standing problem of automatic revocation of visa petitions, President Obama signed into law amendments to the Immigration & Nationality Act reversing the longstanding rule that visa petitions filed for relatives are automatically revoked upon the death of the Petitioner. This new law helps to alleviate the harsh, unfair consequences suffered by thousands of beneficiaries of family and employment-based visa petitions who have been waiting for years for their priority dates to become current, only to have their hopes dashed by the untimely death of the Petitioner before they could obtain their green cards.

For years, the only way to avoid the automatic revocation rule was through requesting  Humanitarian Reinstatement of the revoked visa petition with the office of the USCIS that originally approved the petition. This relief is still available today, but it is discretionary.  The USCIS can, using its discretion grant the reinstatement of a visa petition that was revoked by the death of the petitioner.  There is no hard and fast rule that guarantees approval, but the USCIS determines who deserves revalidation by weighing discretionary factors such as hardship that would be suffered by the relatives in the U.S. as well as by the Beneficiary of the petition, the delay caused by the USCIS in approving the petition, the ties to the U.S. that the Beneficiary may have through family, and any illness of the Beneficiary or other reason to be allowed to come to the U.S.

Previously, these requests for reinstatement were given very low priority by the USCIS and often took years to decide. However, today, thankfully, the USCIS is adjudicating requests for reinstatement on a more streamlined and timely basis.  Our office has filed a number of these requests for humanitarian reinstatement and have received decisions within just a few months.

Under President Obama’s new law, the granting of reinstatement of revoked visa petitions is no longer necessary. Under the new law, the rule is completely reversed: The Petition survives the death of the Petitioner. The only way this rule does not apply is if the USCIS, in its discretion, believes that the revalidation of such a petition would be “against the public interest.” In the vast majority of cases, the Beneficiaries of such petitions are merely innocent victims of long delays in visa availability and the tragic loss of their petitioning relative. The new law removes the additional penalty of losing any opportunity to obtain lawful permanent resident status to these already suffering victims.

The new law expands its protections to additional categories of beneficiaries, as long as they were residing in the US on the date the Petitioner passed away and continue to reside in the US, including: Unmarried sons and daughters of Citizens, Spouses and unmarried sons and daughter of green card holders, married sons and daughters of citizens, and brothers and sisters of citizens. Children of such beneficiaries may also be included derivatively if they continue to meet the definition of “child” under the law at the time the priority date becomes current.

Beyond the regular family categories, the new law also preserves eligibility for derivative beneficiaries of employment-based categories, where the principal Beneficiary has passed away during the process. This rule would allow for the spouse and children of a worker whose petition  is pending or has been approved to continue to seek adjustment of status even though the principal beneficiary/worker passes away. .

Additionally, the Surviving Relatives Law provides ongoing availability of benefits to the surviving direct and derivative beneficiaries of refugee and asylee petitions, as well as the dependent beneficiaries of deceased “U” and “T” visa holders. It also makes clear that in any case where the petition is found to survive the death of the petitioner or “qualifying relative,” the regular affidavit of support requirements do not apply, allowing for substitute sponsors on the affidavit of support in such cases.

There has been much confusion regarding the new law. Several noted attorneys have written articles in newspapers about the Obama law and have caused confusion.  This is because the articles do not spell out the requirement that the new law only applies to beneficiaries of visa petitions that resided in the U.S. when the petitioner died and continue to reside here.  Those who are stuck in the Philippines or other country awaiting a visa interview are not covered by the new law.  These individuals, you’re your brother, must still utilize the humanitarian reinstatement provisions of the existing old law.

So, in your brothers’ cases, they should not pay the $404 to the NVC as there is no guarantee that they will obtain their visas. I would first recommend that they request humanitarian reinstatement and if approved, then gladly pay the filing fees.  I also must note that requesting humanitarian reinstatement is not as simple as writing a letter to the USCIS. The applicant must really convince the USCIS that he or she deserves the reinstatement of the visa petition and that may sometimes be best left to the skilled hands of a qualified immigration attorney.

(Paul Choi will answer all questions regarding immigration and naturalization for FREE. Address questions to pchoi@pchoilaw.com or call 818 714-2226. He is located at 16000 Ventura Blvd. Ste. 1201, Encino, CA. 91436. Phil Abramowitz can be reached at pabramowitz@pchoilaw.com or on his cell at 818 324-8110)

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