A Humanitarian Way for Relatives of Deceased Petitioners to Remain in the United States
By Anish Vashishta
Los Angeles , CA
Certain relatives of United States citizens and Lawful Permanent Residents are eligible to obtain permanent residency in the United States based on their family-based relationships. With some exceptions, these relationships include spouses, parents, minor children, adult sons and daughters, and siblings of United States citizens as well as spouses, minor children, and adult unmarried sons and daughters of Lawful Permanent Residents. Often, the relative has to wait several years before his/her priority date becomes current allowing him/her to apply either for an immigrant visa in the home country or for adjustment of status within the United States. During that period of waiting, the family-based relationship must remain intact.
This requirement remains the rule even after the family-based petition is approved and lasts until the relative receives his/her Green Card. Once the petition has been approved, a disruption in the family-based relationship can result in an automatic revocation of the petition. Other than the dissolution of a marriage, the aging out or marriage of children, or the written withdrawal of the petition by the petitioner, a common reason for such disruption, and therefore the automatic revocation of an approved petition, is the death of the petitioner.
One major exception to automatic revocation of an approved petition based on the death of the petitioner is when the late petitioner’s surviving spouse can still benefit from the late petitioner’s approved petition but only if the late petitioner was a United States citizen, the surviving spouse and the late petitioner were married for at least two years, and the surviving spouse has not remarried. Such circumstances are unique and do not benefit relatives of Lawful Permanent Residents or non-spousal relatives of United States citizens.
Fortunately, Congress provided for one other major exception to the automatic revocation of an approved petition following the death of the petitioner when it passed the Family Sponsor Immigration Act of 2002. Under that law, a relative of a late petitioner whose petition has been approved can have the petition reinstated on humanitarian grounds so that the relative can receive an immigrant visa abroad or can adjust status in the United States. Obtaining approval of such a benefit requires the relative to request reinstatement on humanitarian grounds and to provide an alternate sponsor as a substitute for the late petitioner. The alternate sponsor must be the relative’s spouse, parent, mother-in-law, father-in-law, sibling, child over seventeen years old, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild over seventeen years old, or legal guardian. Even if these requirements are met, a reinstatement request may still be denied without the right to an appeal.
Therefore, it is important to note that reinstatement on humanitarian grounds of a late petitioner’s approved petition is the exception and not the rule. Such requests are scrutinized and must prove a number of factors before being given a discretionary grant of approval. Relatives of late petitioners whose petitions have already been approved should seek a skilled immigration lawyer before attempting to have the late petitioner’s approved petition reinstated on humanitarian grounds.
(The author, Anish Vashistha, is a licensed attorney with a nationwide immigration-law practice. He is a graduate from Georgetown University Law Center and Georgetown University’s School of Foreign Service. He has helped several Pakistani nationals obtain or maintain legal status in the United States. He may be contacted toll-free at 1 (866) 433-7016 or by email at Anish@HazanyLaw.com)
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