Does an Immigrant Visa Petition Die with the Petitioner?

There has been some confusion about the status of an approved immigrant visa petition and the issue of "substitute sponsors" after the death of the visa petitioner in the immigrant community. Many families don’t understand exactly what benefits are offered by a new law (FY10 DHS Appropriations Act) that was signed by President Obama in October 2009 to survivors of a immigrant visa petition. This article will attempt to clarify this issue in so far as it they are relate to family-based immigration petitions.

What was the "old' law?

The discussion should begin with the status of the law prior to the passage of the FY10 DHS Appropriations Act.  Prior to October 2009, after the petitioner in a family-based immigrant petition died, the immigrant visa petition was automatically denied or revoked by operation of law. The reason was that if the petitioner was no longer there, the petition was considered to be no longer valid and should be terminated. An exception was created by the Family Sponsor Immigration Act of 2002, which amended the Immigration Act to create a way through which a person other than the visa petitioner can continue to sponsor a foreigner. 

This law allows qualified family members to become "substitute sponsors" after the death of the original petitioner. However, the U.S. Immigration Services must first agree to reinstate the visa petition for humanitarian reasons. Such a determination is completely discretionary, meaning that the parties have no legal rights to appeal or petition that reinstatement be approved. Although the Department of State officers may make such a determination, most of these cases are decided by the USCIS officers, who will consider factors such as family ties, hardship to U.S. citizens or lawful permanent residents, ages and health of the parties, financial situation, existence of government delays or errors, etc.

If and only if the USCIS in its discretion agrees to reinstate the visa petition, a "substitute" sponsor may act as the financial sponsor and the case may continue to move forward. The substitute sponsor must be related to the foreign beneficiary 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 of the sponsored alien, or the legal guardian of the sponsored alien. Obviously, the substitute sponsor must also meet the income requirements. 

Finally, it is important to understand that, in order for the visa petition to be reinstated, the visa petition must have been approved before the death of the petitioner. The government has no legal authority to approve a visa petition after the death of the petitioner.

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The new law helps many but not all.

The FY10 DHS Appropriations Act signed by President Obama on October 28, 2009 did create many changes in the law. For examples, it eliminated the so called “widow penalty” by allowing the surviving spouse of a U.S. citizen to self-petition for lawful permanent residence status even if the marital relationship lasted less then two years. The widower’s minor children are also covered by the new law. An affidavit of support is not required for these applicants. Older cases are also covered and they have two years to file the self-petition. Widowers who are outside of the U.S. may also apply, as long as they had not been in the U.S. without lawful status for more than 180 days.

The same law also allows many other categories of relatives to continue with their immigrant visa petitions after the death of the petitioners. They include minor and adult children of U.S. citizens or lawful residents, spouses of U.S. citizens or lawful residents, married children of U.S. citizens, siblings of U.S. citizens, and children and spouses of asylees and refugees. Most of these individuals' dependents are also covered. They no longer need to request for humanitarian reinstatement of the visa petition and the case may still go on as long as there is a substitute financial sponsor.

Although it seems like the new law saved all “dying” immigrant petitions, it did not. There is one catch - In order for any beneficiary to take advantage of the automatic reinstatement provision, he or she must be residing in the U.S. when the petitioner dies and continue to live here. For the family members who live abroad, they must still continue to request for humanitarian reinstatement under the old law if they would like to continue their immigration process after the death of the petitioner. As stated, such a request is completely discretionary and the parties must present compelling evidence to increase the chances of getting an approval.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.)