May I “Take Over” My Deceased Husband’s Petition or Priority Date?

Dear Atty. Gurfinkel:

Both my husband and I have been U.S. citizens.  In 2011, he filed a petition for our adult single son (Category F-1), which was later approved in 2015.  Unfortunately, my husband died in 2018.  We are now receiving notices from the NVC that my son should apply for his visa.

Since my husband has died, would it be possible for me to take over his petition or transfer his 2011 priority date to a petition I would file?  In other words, may I recycle or use my husband’s priority date for our son’s case?

 

Very truly yours

AG

 

Dear AG:

Unfortunately, no.  According to USCIS, “if the original petitioner has died, then there is no basis for transferring the priority date assigned to that petition to a newly filed petition.  A new petitioner would need to come forward and [file a new] petition on behalf of the beneficiary.  The priority date assigned to that new petition would be the date it was properly filed with [USCIS] irrespective of any earlier file petition on the beneficiary’s behalf.”  In other words, you cannot take over your husband’s petition or have his priority date transferred to a petition you would file.

Your options would be to seek “humanitarian revalidation”, to have your husband’s petition revalidated or reinstated, or for you to file a new petition, in which case you would get a brand-new priority date and basically your son would have to go to the back of the line.  (Note: If your son was in the U.S. when the petitioner died, humanitarian revalidation may not be necessary under the “Survivor Law”, or 204(l)).

I have often suggested that when both parents can petition their child, they should both do so, even though only one petition/petitioner is required.  Yes, you’re filing an extra petition and paying an extra filing fee, but then each parent’s petition is a backup or insurance policy for the other.  Had both of you petitioned your child back in 2011, and your husband passed away, your petition would still be “alive,” and you could have avoided the time, cost, and expense of pursuing humanitarian revalidation.

If you pursue humanitarian revalidation, I recommend that you consult with an attorney to assist you, rather than filing it on your own.  Many people think all that is necessary is to submit an affidavit of support from a substitute sponsor.  Pursuing humanitarian revalidation is much more complex and detailed in terms of the proof and, showing that must be made.

The request for humanitarian revalidation/reinstatement must be submitted to the Service Center where the original petition was filed.  If the petition was filed at the California Service Center (CSC), the request for humanitarian revalidation must be filed there.  However, the CSC has a horrendous track record on humanitarian revalidation requests.  I requested information on their approval rates under the Freedom of Information Act (FOIA), as it appeared almost every case filed at CSC was denied.  When they responded, I was stunned at their results: out of 10,755 humanitarian revalidation requests received between 2010 and 2018, a mere 720 were granted.  That is an approval rate of less than 7%!  It is almost as though the CSC looks for ways to deny cases.  Even the Office of the USCIS Ombudsman criticized the CSC in its annual report on CSC’s processing of humanitarian revalidation requests.

Furthermore, it could take years before the CSC issues its form/template denial.  Even when a person follows up after 5 years, a form letter goes out that CSC “processes this case type as our resources and priorities allow.  We do not have an estimated time frame for how long it may take to review your request.”  In other words, CSC basically places the lowest priority on HR requests before perfunctorily issuing its form denials.  Let’s hope soon there will be a change of staffing in the humanitarian revalidation department at CSC, where officers will finally exercise even a minuscule amount of compassion and discretion.

Meanwhile, your options would be to pursue humanitarian revalidation, whether at CSC or the other more compassionate service centers, file a new petition on your behalf with a new priority date, or perhaps if an employer in the U.S. has a job position related to your child’s skills or education, an employer could petition your child through an employment-based green card.

 

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