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This week one of my petitioner died and his son immigrant visa was approved but the visa has not been issued. Of course, the family is in a state of panic because of the death of the petitioner and the pending visa issuance for the son.
So, what are the options when the petitioner has died after the I-130 is approved but before visa issuance or adjustment of status? Unfortunately, when the petitioner dies the pending family-based immigration petition also dies or becomes void. Again, the approved petition becomes void and any pending visa application will be denied.
There is an option to request “humanitarian reinstatement” of the approved family-based immigration petition and substitute a sponsor. This is not an automatic process and immigration will not automatically substitute a sponsor and reinstate the approved petition. A formal request must be made at the immigration office that approved the Form I-130 with an abundance of written evidence to prove the humanitarian hardship to the family and filing an affidavit of support by the substitute sponsor.
Who can be a substitute sponsor?
- child (if at least 18 years of age)
- grandchild of a sponsored foreign citizen or
- legal guardian of a sponsored foreign citizen.
Humanitarian reinstatement cannot be granted if the petitioner died while the petition was pending (and not yet approved). The Form I-130 must have been approved before the death of the petitioner before humanitarian reinstatement can be requested. Humanitarian reinstatement is a discretionary benefit. Exercising discretion means an immigration officer will weigh positive factors against negative factors to make a decision. In addition to meeting the basic requirements for humanitarian reinstatement, the request must warrant a favorable exercise of discretion, meaning that the “pros” in granting the request outweigh the “cons.”
There is no form or fee to ask for humanitarian reinstatement. You need to make a written request and it is recommended to seek the advise and assistance from an experienced immigration lawyer.
For more information on petitioner died,
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