By Attorney Gail S. Seeram, [email protected]
Death can come at any moment or time. Unfortunately, when a petitioner of a family-based visa petition dies, so does the pending visa petition. Under the immigration laws, the approved visa petition is revoked upon the death of the petitioner unless the Attorney General determines that, for humanitarian reasons, revocation would be inappropriate. See 8 CFR § 205.1(a)(3)(i)(C).
So, at the time the visa is issued at the U.S. Embassy, the petitioner must be alive or the visa petition will be revoked or denied.
The Family Sponsor Immigration Act of 2002 remedies the situation of an alien whose petitioner has died by amending INA sections § 212(a)(4)(C)(ii) and § 213A(f)(5).
The amended §213A(f)(5) creates a way in which a person other than the visa petitioner can sponsor an alien. Now, certain family members can become “substitute sponsors” if a visa petitioner dies following approval of the visa petition, but before the alien obtains permanent residence.
The visa petition must be approved prior to the death of the petitioner in order for the beneficiary to be eligible for permanent residence. U.S. Department of Homeland Security (DHS) has no authority to approve a visa petition following the petitioner’s death. Dodig v. INS, 9 F.3d 1418 (9th Cir. 1993).
If, however, the visa petition was approved prior to the death of the petitioner, DHS may, in its discretion, reinstate the petition for humanitarian reasons.
DHS is not required in any given case to reinstate approval of a visa petition. Reinstatement continues to be a matter of discretion, to be exercised in light of the facts of each individual case, particularly those cases in which failure to reinstate would lead to a harsh result contrary to the goal of family reunification.
If DHS reinstates a petition following the death of the visa petitioner, the use of a “substitute” sponsor is allowed to sign the affidavit of support and, if the substitute sponsor meets the income requirements, allow the alien to obtain permanent residence.
A substitute sponsor may only replace the visa petitioner if the visa petitioner is dead and if DHS reinstates the original petition for humanitarian reasons. Also, substitute sponsors must be related to the sponsored alien in one of the following ways: as a spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild or legal guardian.
Our law office has handled many reinstatement requests after a petitioner’s death. The process can take from nine months to one year. The process should not be taken lightly, as DHS requires substantial amount of evidence to prove that reinstatement is required based on humanitarian ground and for family reunification.
While the request is pending to substitute the sponsor and reinstate the visa petition, the beneficiaries remain in their country of citizenship. If the substitute sponsor and reinstatement of the visa petition is approved, the file is transferred to the U.S. Embassy and the visa is issued.
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