Immigration Lawyer Ari Sauer – The Immigration Answer Man

Memphis immigration lawyer Ari Sauer provides news and information on US immigration law.

Can a spouse or child benefit from an approve immigrant petition where the primary beneficiary has died?

Question: My uncle, a U.S. citizen, filed an I-130 immigrant visa petition on behalf of my father. The petition was approved, but then my father passed away. The priority date for the petition has been reached on the Visa Bulletin. Can my mother now get an immigrant visa based on the petition?

Answer: Unfortunately your mother cannot benefit from the petition filed by your uncle. When the primary beneficiary dies, the I-130 petition automatically becomes revoked. Any derivative beneficiaries to that petition are not eligible to receive visas based upon the revoked petition.

Unlike situations where the petitioner dies, there is no process to request a reinstatement of the petition for humanitarian reasons where the beneficiary dies.

The only remaining benefit of the petition is that is can still grandfather the derivative beneficiary under the INA 245(i) “amnesty” where the petition was filed by April 30, 2001.

2 comments on “Can a spouse or child benefit from an approve immigrant petition where the primary beneficiary has died?

  1. Farooq
    July 3, 2016

    Dear Ari Suaer,
    My paternal uncle filed an immigration on behlaf of my father in 1992. Our case (including my father, mother, elder brother and me) was approved in 2004 by NVC and our interview was conducted in 2006.In 2009,US embassy issued the visas for my father,mother and my elder brother and told me to wait as there is further processing required for my visa.There after my family started residing in US.Unfortunately,my father passed away in 2012 while my application still under administrative processing.Do i still have any chance to get visa under the same petition ?

    • As you can see from my post above, in certain circumstances it is possible to have the I-130 reinstated where the primary beneficiary passes away. I cannot say for certain whether the petition in your situation might be eligible for reinstatement, but it does appear from the facts in your comment that it might be. In addition to this, some other issues are whether you are still eligible to benefit as a derivative beneficiary of that petition and getting your case “unstuck” with the Department of State, if you are. You should definitely consult with an experienced immigration lawyer about this.
      If you would like to have a consultation appointment with me to discuss your options, you can call 901-507-4270, and my paralegal, Jessica, can help you to schedule an appointment.
      * This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm. . On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

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This entry was posted on November 16, 2009 by in Uncategorized.
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