Memphis immigration lawyer Ari Sauer provides news and information on US immigration law.
QUESTION: My father filed an I-130 on my behalf which has been approved. We are waiting for a visa to become available for the petition on the Visa Bulletin. My father’s health is getting worse. If he passes away before I get a visa, will I still be able to apply for the visa?
IMMIGRATION ANSWER MAN: An immigrant petition automatically becomes revoked upon the death of the petitioner or primary beneficiary. However, USCIS can reinstate the petition where 1) the beneficiary had a pending or approved I-130 on their behalf at the time of the petitioner’s death; 2) the beneficiary is residing in the US at the time of the petitioner’s death and continues residing in the US; and 3) reinstating the petition would not be against the public interest.
Alternatively, for those that do not meet the requirements listed above and are not widows or widowers of US citizens (which have separate reinstatement rules) there is still the possibility of having the I-130 reinstated. When the petitioner dies after a petition has been approved, USCIS has the authority to reinstate the petition for humanitarian purposes where the beneficiary has another relative who can serve as a substitute sponsor (spouse, parent, mother-in-law, father-in-law, sibling, child at least 18 years of age, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild of a sponsored alien or legal guardian of the sponsored alien). Some factors that USCIS will consider in deciding whether to grant humanitarian reinstatement of the I-130 are 1) the impact of revocation on the family unit in the United States, especially on U.S. citizen or LPR relatives or other relatives living lawfully in the United States; 2) the beneficiary’s advanced age or poor health; 3) the beneficiary’s having resided in the United States lawfully for a lengthy period; 4) the beneficiary’s ties to his or her home country; and 5) significant delay in processing the case after approval of the petition and after a visa number has become available, if the delay is reasonably attributable to the Government, rather than the alien.
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* This is an advertisement. Ari Sauer is an attorney with the Siskind Susser law firm. www.visalaw.com/ari.html. 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 New York and New Jersey. 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.