By: Dennis E. Chua, Esq.
The US Citizenship and Immigration Services has long taken the position that once the petitioner dies, the petition can no longer be approved even if the petition was filed before the death of the petitioner.
This long standing policy has now changed with the enactment of Public Law 111-83 on October 28, 2009. Notwithstanding the death of the petitioner, the new law permits the approval of a visa petition, as well as any adjustment application and related application to be approved if the surviving relative meets the following requirements:
• Resided in the United States when the petitioner relative dies;
• Continues to reside in the United States on the date of the decision on the pending petition or application; and
• Is at least one of the following:
- The beneficiary of a pending or approved immediate relative visa petition;
- The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries;
- Any derivative beneficiary of a pending or approved employment-based petition;
- The beneficiary of a pending or approved Refugee or Asylee Relative petition;
- An alien admitted as a derivative "T" or "U" nonimmigrant; or
- A derivative asylee applicant.
The new law applies to any immigrant visa petition, or application decided on or after October 28, 2009, even if the petition or application was filed before that date. For petitions which have been decided before the enactment of the law, the USCIS still maintains the position that these approved petitions are automatically revoked with the death of the petitioner, and that a humanitarian reinstatement request is needed before a petition can be continued.
However, the new policy memorandum adopted by the USICS takes a more liberal approach by allowing humanitarian reinstatement of a revoked petition so long as the surviving relative meets the requirements of the new law without showing other equities that may be available. The memorandum also allows surviving relatives whose petitions have already been denied the opportunity to have their cases re-opened and to renew their request for the reinstatement of the revoked petitions under the new law.