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NEW HOPE FOR FAMILIES OF DEAD PETITIONERS
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
Years ago, I was petitioned by my U.S. citizen father. Unfortunately,
my father died while I was waiting for 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 U.S. 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 petitioner 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 the 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 greencards
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, father-in-law,
brother, sister, 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 a legal guardian of a
sponsored alien, who are either U.S. citizens or lawful permanent
residents (green card holders).
Therefore, even of a petitioner dies, it is possible for a person
to nevertheless be able to obtain an immigrant visa 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 U.S.
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.
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