New hope for families of dead petitioners

Dear Atty. Gurfinkel:

Years ago, I was petitioned by my US citizen father. Unfortunately, my father died while I was waiting or my priority date to become current. Is there any hope for me to immigrate under my father’s petition even though he has passed away.

Very truly yours,
R.T.


Dear R.T.:

Under US immigration laws, the death of a petitioner ordinarily results in the automatic revocation of the petition, unless "the Attorney General (INS) in his or her discretion determines that for humanitarian reasons revocation would be inappropriate". This particular regulation is commonly referred to as "humanitarian revalidation".

In other words, even though a petition has died, the INS may revalidate the petition, if a strong case is presented, demonstrating the "humanitarian" factors involved to the family members.

However, even when a person is granted humanitarian revalidation by INS, there was a separate, conflicting law (relating to affidavits of support) which operated to effectively nullify humanitarian revalidation. The law relating to affidavits of support required that petitioner must, in all cases, submit an affidavit of support. Obviously, if a petitioner was dead, he or she could not sign or submit an affidavit of support. Thus, many people who were successful in obtaining humanitarian revalidation were, nevertheless, unable to obtain immigrant visas and/or green cards because of the separate requirement of having a dead petitioner submit an affidavit of support.

Just recently, Congress finally rectified this problem. On February 26, 2002, Congress passed a bill (HR 1892), the "Family Sponsor Immigration Act of 2002", which will amend the Immigration and Nationality Act, to allow the acceptance of an affidavit of support from another person (aside from the petitioner), if the original petitioner has died and the INS has granted humanitarian revalidation. The persons who could be eligible to "replace" the petitioner for purposes of submitting affidavits of support would include the alien’s spouse, parent, mother-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild of the sponsored alien, or a legal guardian of a sponsored alien, who are either US citizens or lawful permanent residents (Green card holders).

Therefore, even if a petitioner dies, it is possible for a person to nevertheless be able to obtain an immigrant and/or green card if.

1. The alien obtains humanitarian revalidation from INS; and

2. One of the above-referenced relatives agrees to act as a sponsor in place of the deceased petitioner.

Please also be aware that the alien’s priority date must also be current in order to obtain an immigrant visa and/or a green card, even if humanitarian revalidation is granted. For example, if someone was petitioned as the married child of a US citizen in 1995, he or she would not be presently eligible for a visa, even if he obtained humanitarian revalidation. This is because INS and the Embassy are only processing married children who were petitioned in 1988.

In your case, if your priority date is current, and you are able to obtain humanitarian revalidation, this legislation (HR 1892), could dispense with the old requirement of having the petitioner submit the affidavit of support. However, I have to caution people that humanitarian revalidation is the exception to the rule. (The rule is that the death of a petitioner results in automatic revocation of the petition.) Thus, just because a person applies for humanitarian revalidation does not mean that INS will approve or grant their case. INS acts on these requests on a case-by-case basis. I would strongly advise people to seek the advice of a reputable attorney, who can analyze their case, and assist them in connection with the presentation of their case to INS, to demonstrate the humanitarian factors in accordance with INS criteria.

Michael J. Gurfinkel has been a licensed attorney in California for 22 years. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also an active member of the State Bar of California, the American Immigration Lawyers Association, and the Immigration Section of the Los Angeles County Bar Association. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar.

His offices are located at 219 North Brand Boulevard, Glendale, California, 91203 Telephone: (818) 543-5800. His Makati office is located at Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines; Telephone: 894-0258 or 894-0239. For more information about the Law Offices of Michael J. Gurfinkel, and to read previously published articles, please visit our website at www.gurfinkel.com

(This is for informational purposes only, and reflects the firm’s opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)