Beneficiaries of family-based immigrant petitions face lengthy backlogs for visa availability. For example, with the exception of spouses and children of permanent residents (F2A), the waiting period for family sponsored preferences for the Philippines runs from 10 to 23 years.
Given these long waiting times, it is quite possible for the petitioner to pass away between the time of the I-130 approval and the availability of a visa number. The petitioner’s death results in the automatic revocation of the I-130 approval. As a rule, the death of the petitioner results in the death of the petition. For many foreign nationals, this could mean the end of their dream of ever living in the United States.
However, the law gives the USCIS director the discretion not to revoke the approval in instances where revocation would not be appropriate for humanitarian reasons. The I-130 beneficiary may ask for the reinstatement of the revoked petition by submitting a written request for humanitarian reinstatement to the USCIS office where the I-130 petition was filed. Only approved petitions may be reinstated and not petitions where the petitioner died before the approval.
The following factors are considered in evaluating a humanitarian request: disruption of an established family unit; hardship to U.S. citizens or lawful permanent residents; if the beneficiary is elderly or in poor health; if the beneficiary has had lengthy residence in the United States; if the beneficiary has no home to go to; undue delay by the DHS or consular officer in processing the petition and visa; and if the beneficiary has strong family ties in the United States.
The beneficiary must have a substitute sponsor who will execute the affidavit of support (I-864) in the place of the deceased petitioner. A law enacted in 2002 allowed the following relatives to become substitute sponsors of the beneficiary: spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years old), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent or grandchild or legal guardian of the beneficiary.
The substitute sponsor must meet the minimum income requirements and be a U.S. citizen or legal permanent resident, at least 18 years old, and domiciled in the U.S.
In 2009, Congress passed a law that provides great relief to I-130 beneficiaries already present in the United States at the time of the petitioner’s death. These beneficiaries may have their pending visa petition and adjustment of status application approved if they are surviving relatives under the law and they meet the residence requirement. In these cases, the petition does not die with the petitioner, so to speak.
The deceased qualifying relative may be the petitioner or the principal beneficiary in a family-based immigrant visa petition, the principal beneficiary in an employment-based visa petition, the petitioner in a refugee/asylee relative petition, the principal alien admitted as a T or U nonimmigrant, or the principal asylee who was granted asylum.
Furthermore, the surviving relatives must have resided in the United States at the time of the petitioner’s death, and continue to reside in the United States. For purposes of this law, “residence” need not be lawful U.S. residence.
Beneficiaries who were outside the United States when the petitioner died have humanitarian reinstatement as their only recourse. A claim of humanitarian factors must be supported by documentary evidence in order to increase the chances of the petition’s reinstatement.
The laws on substitute sponsorship and surviving relatives were passed to ameliorate the harsh and unjust consequences to the beneficiary resulting from the petitioner’s death.