It is very common for beneficiaries of family based petition to wait many years before their petition’s priority date becomes current. This is usually the case with US Citizen parent petitions to adult son or daughter. This is also common among petition’s between Siblings. What happens when the Petitioner dies? Are all those years of waiting wasted? Not quite. Normally, the Petition is automatically revoked once the Petitioner dies.
However, all is not lost by the death of the Petitioner. The beneficiary has a couple of options depending on whether they are inside the US or outside the US. The beneficiary may either avail of the INA § 204(l) which was signed into law in 2009 if the beneficiary is inside the US at the time the petitioner’s death and continues to reside inside the US.
Alternatively, if the beneficiary is outside the US, beneficiary may seek to reinstate the petition based on humanitarian grounds. The DHS (Dept. of Homeland Security) may exercise discretion “for humanitarian reasons” to reinstate the petition and to allow the Affidavit of Support requirements to be satisfied by the qualifying I-864 of a souse, parent, mother-in-law, father-in-law, sister-in-law, brother-in-law, grandparent, or grandchild or legal guardian of the beneficiary, as long as the petition was “approved” prior to the Petitioner’s death.
If the beneficiary is inside the US either in legal status or grandfathered by INA §245(i) and the priority date on the petition is current, the beneficiary may apply for adjustment of status. The beneficiary may also apply for an employment authorization card.
DHS discretion does not mean “guaranteed” approval. The case will be evaluated on a case by case basis. Some of the factors that the DHS may consider are 1) disruption of an established family unit; 2) hardship to US citizens or lawful permanent residents; 3) beneficiary is elderly or in poor health; 4) beneficiary has had lengthy residence in the US; 4) beneficiary has no home to go to; 5)undue delay by USCIS or consular officer in processing petition and visa; 6) and Beneficiary has strong family ties in the United States.
The beneficiary must be prepared to show proof of the original I-130 that was filed, proof of I-130 approval if approved, a copy of the Petitioner’s death certificate, proof of substitute sponsor’s relationship to the beneficiary, and meet all the I-864 requirements.
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Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected]; Website kenreyeslaw.com.
