Humanitarian Reinstatement: When Petitioner Dies and You Are Not Covered by the New Law
By: Jean S. Tinsay, Esq.
Several months ago, we devoted several articles discussing the applicability and coverage of Public Law 111-83. The new law while it provides a much welcome relief to many still excluded many more surviving relatives whose visa petitions or applications are still deemed automatically revoked or denied by virtue of the death of their relative petitioner.
To recap, Public Law 111-83 which was enacted into law on October 28, 2009 permits the approval of a visa petition or adjustment of status application and related applications even if the petitioner dies provided the alien beneficiary (i) resided in the United States when the qualifying relative dies; and (ii) continues to reside in the United States on the date his or her petition or application is decided.
Unfortunately, there are plenty of alien beneficiaries who were not residing in the United States when their U.S. citizen or permanent relative petitioner dies. For them, the new law's reach is not far enough. For these alien beneficiaries, relief may still be available to them under a long standing USCIS regulation that provides the USCIS with the discretion to decide not to revoke the approval of an approved immigrant petition for "humanitarian reasons."
Thus, for alien beneficiaries who were not residing in the United States when their petitioner relative dies, a "humanitarian reinstatement" maybe the last recourse available -- the only remaining hope they have that the immigrant petition filed on their behalf survives. To request for humanitarian reinstatement, the alien beneficiary must submit a written request for reinstatement of the revoked petition to the USCIS service center or field office that approved the petition. The grant of reinstatement is discretionary. The factors that the USCIS considers in deciding whether to approve requests for humanitarian reinstatement are the following:
1. The impact of revocation on the family unit in the United States, especially on the beneficiary's U.S. citizen or lawful permanent relatives living in the United States;
2. The beneficiary's advance 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.
The grant of humanitarian reinstatement by the USCIS does not do away with other eligibility requirements. For example, the alien applicant still has to wait for the visa number to be available in his or her preference category and in cases of immediate and family-based preference immigrant petitions that require the submission of an affidavit of support, the alien beneficiary will be required to submit an affidavit of support from a substitute sponsor.
To qualify as a substitute sponsor, the sponsor must be related to the alien beneficiary as his or her spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild.
Atty. Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max's Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; firstname.lastname@example.org