Death of the Petitioner: End of the Road?
There are 2 major petition categories leading to a green card (GC), namely, employment-based (EB) and family-based (FB). EB is more complex because, aside from finding a willing American sponsor, the applicant has to possess the minimum qualifications (e.g. education, licensure, experience). Qualification-based immigration eventually weeds out majority of many aspiring job seekers, only leaving those who possess the skills and talent to get the job done. As a consequence, the fewer applicants, the faster the aggregate processing of EB petitions.
Now compare this to family-based immigration (except for immediate relatives of US citizens such as spouse and unmarried children under 21, who still enjoy expedited immigration benefits). Most of those who were sponsored by their relatives years ago still wait for their turn to be interviewed in the US Embassy in Manila, as a prelude to the issuance of their GCs.
This long wait comes to no surprise considering the sheer number of qualified applicants lining up in a "first filed, first processed" type of system. By virtue of being a relative of a sponsor, which can be easily proven by marriage and birth certificates, petitions of this sort swamp the concerned US immigration agency, resulting to a slower turnover, and the dreaded decade-long waiting times for most FB beneficiaries.
Experience shows that a lot can happen in a decade. Waiting that long unfortunately faces the high risk of witnessing the death of an aging sponsor. What happens to a pending FB petition when the petitioner dies? Under US immigration law, the death of the petitioner automatically revokes the petition. Meaning, the petitioner must remain alive until the beneficiary receives his GC. Stated otherwise, the petition also dies with the dead petitioner, making the beneficiary of such petition ineligible for the GC. Harsh as it may seem, the law offers no reward for those who patiently waited for decades.
Like any other laws, general rules have exceptions. The rule on automatic revocation, however, has only one exception. It is called a "Request for Humanitarian Revalidation" or "Request for Humanitarian Reinstatement". But before one can avail of this extraordinary remedy, the applicant must meet two pre-requisites.
First, he should be a beneficiary of a petition that has already been initially approved by the USCIS (note: USCIS approval does not guarantee a green card). Second, there should be a qualified sponsor willing to substitute the dead sponsor. To be qualified, the substitute-sponsor (SS) should be related to the beneficiary in one of the following ways: spouse, parent, parent-in-law, sibling, child (at least 18), child-in-law, sibling-in-law, grandparent, grandchild or a legal guardian. Furthermore, the SS must meet the minimum income requirement as set forth in the current Poverty Guidelines.
Once an applicant meets the pre-requisites, then he can avail of the exception to the rule of automatic revocation. The exception reads " unless the Atty. General (AG) in his or her discretion determines that for humanitarian reasons, revocation would be inappropriate". Discretion means that it is up to the AG, or his representative, to decide whether to reinstate or not. Being discretionary, there is no guarantee that you can "win" the AG s heart .
In deciding upon humanitarian reasons, the factors are: disruption of an established family unit; hardship to US citizens or GC holders; if beneficiary is elderly or in poor health; if beneficiary has had a lengthy residence in the US; if beneficiary has no home to go to; undue delay in processing; and if beneficiary has strong family ties in the US.
Therefore, the strategy is to draft a heart-warming letter requesting for Humanitarian Reinstatement, discussing the above-mentioned factors, written in a tone, compelling enough to convince the AG to empathize with the applicant s dire situation, ultimately winning his approval for the reinstatement.
This article merely serves as general info that may or may not apply to your case, as each case is different and should be considered on a case-by-case basis. It is recommended to seek the advice of a US immigration lawyer who can best analyze your (or your relative's) situation and assist you in drafting your letter requesting for humanitarian reinstatement. The author is a member of the Philippine and New York Bar. As a New York lawyer, he is authorized to practice US Immigration law. If you have specific questions, please contact Globex Immigration Alliance Services, Mobile: 09177009823, email: globexia@gmail.com, website: globex.justia.net
Now compare this to family-based immigration (except for immediate relatives of US citizens such as spouse and unmarried children under 21, who still enjoy expedited immigration benefits). Most of those who were sponsored by their relatives years ago still wait for their turn to be interviewed in the US Embassy in Manila, as a prelude to the issuance of their GCs.
This long wait comes to no surprise considering the sheer number of qualified applicants lining up in a "first filed, first processed" type of system. By virtue of being a relative of a sponsor, which can be easily proven by marriage and birth certificates, petitions of this sort swamp the concerned US immigration agency, resulting to a slower turnover, and the dreaded decade-long waiting times for most FB beneficiaries.
Experience shows that a lot can happen in a decade. Waiting that long unfortunately faces the high risk of witnessing the death of an aging sponsor. What happens to a pending FB petition when the petitioner dies? Under US immigration law, the death of the petitioner automatically revokes the petition. Meaning, the petitioner must remain alive until the beneficiary receives his GC. Stated otherwise, the petition also dies with the dead petitioner, making the beneficiary of such petition ineligible for the GC. Harsh as it may seem, the law offers no reward for those who patiently waited for decades.
Like any other laws, general rules have exceptions. The rule on automatic revocation, however, has only one exception. It is called a "Request for Humanitarian Revalidation" or "Request for Humanitarian Reinstatement". But before one can avail of this extraordinary remedy, the applicant must meet two pre-requisites.
First, he should be a beneficiary of a petition that has already been initially approved by the USCIS (note: USCIS approval does not guarantee a green card). Second, there should be a qualified sponsor willing to substitute the dead sponsor. To be qualified, the substitute-sponsor (SS) should be related to the beneficiary in one of the following ways: spouse, parent, parent-in-law, sibling, child (at least 18), child-in-law, sibling-in-law, grandparent, grandchild or a legal guardian. Furthermore, the SS must meet the minimum income requirement as set forth in the current Poverty Guidelines.
Once an applicant meets the pre-requisites, then he can avail of the exception to the rule of automatic revocation. The exception reads " unless the Atty. General (AG) in his or her discretion determines that for humanitarian reasons, revocation would be inappropriate". Discretion means that it is up to the AG, or his representative, to decide whether to reinstate or not. Being discretionary, there is no guarantee that you can "win" the AG s heart .
In deciding upon humanitarian reasons, the factors are: disruption of an established family unit; hardship to US citizens or GC holders; if beneficiary is elderly or in poor health; if beneficiary has had a lengthy residence in the US; if beneficiary has no home to go to; undue delay in processing; and if beneficiary has strong family ties in the US.
Therefore, the strategy is to draft a heart-warming letter requesting for Humanitarian Reinstatement, discussing the above-mentioned factors, written in a tone, compelling enough to convince the AG to empathize with the applicant s dire situation, ultimately winning his approval for the reinstatement.
This article merely serves as general info that may or may not apply to your case, as each case is different and should be considered on a case-by-case basis. It is recommended to seek the advice of a US immigration lawyer who can best analyze your (or your relative's) situation and assist you in drafting your letter requesting for humanitarian reinstatement. The author is a member of the Philippine and New York Bar. As a New York lawyer, he is authorized to practice US Immigration law. If you have specific questions, please contact Globex Immigration Alliance Services, Mobile: 09177009823, email: globexia@gmail.com, website: globex.justia.net