Imagine spending ten, fifteen, even twenty years waiting to be eligible to obtain a visa to the United States, only to have the dream erased when the petitioner on the visa petition passes away.While the death of a loved one is already tragic, the tragedy is heightened at the knowledge that the dream of a future in the US is also passed.This is the unfortunate situation that many are faced with since the waiting period to obtain a visa to the United States based on a family relationship is getting longer and longer. The general rule under the immigration laws is that a relative petition is automatically revoked upon the death of the petitioner.Understanding that this would result in injustice in some situations, the laws allow for an exception to this general rule.When the petitioner in a relative petition dies, the beneficiary may request that the revoked visa petition be revalidated, or reinstated, so that the individual may obtain the immigrant visa when the priority date becomes current. The request for revalidation must be made in writing to the United States Citizenship and Immigration Service (CIS) office that adjudicated the relative petition.In determining whether to grant the request for revalidation, the CIS considers the following factors:(1) Disruption of an established family unit; (2) Hardship to United States citizens or lawful permanent residents; (3) Beneficiary is elderly or in poor health; (4) Beneficiary has lengthy residence in the United States; (5) Beneficiary has no home to return to; (6) Undue delay by the CIS or Consulate in processing the petition and visa; (7) Strong family ties in the United States; and (8) Any and all other reasons exhibiting hardship or injustice if not reinstated.Documentation supporting the reasons why the request for revalidation should be granted must be provided with the request. In addition to the request for reinstatement, the individual is also required to submit an affidavit of support to prove that they will not become a public charge to the United States.The affidavit of support may only be submitted by a United States citizen or lawful permanent resident who is related to the applicant in one of the following capacities:spouse, parent, mother-in-law, father-in-law, child (if at least eighteen years old), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild.If an applicant does not have one of the above-mentioned family members who can submit an affidavit of support, a request for reinstatement is not worthwhile as an immigrant visa cannot be granted without an affidavit of support. Should the request for revalidation be approved, the priority date on the petition will be reinstated, thereby allowing the individual to keep his/her place on the waiting list without having to start all over again.When the priority date becomes current, the individual will be eligible to continue with the processing of the visa application.If the priority date is current and the individual is in the United States, the application for revalidation, work permit and permanent residency can actually be submitted all at time. For those already in the US, if the priority date on the petition is already current, the individual may also submit the application for adjustment of status and employment authorization at the time the Humanitarian Reinstatement request is submitted.This provides the individual with the ability to lawfully work while the applications are pending with the CIS. Accordingly, individuals faced with the trauma of losing a loved one that is the petitioner in a relative petition need not simply consider the petition a loss as well.Avenues are available for seeking reinstatement of the petition so that the individual may hopefully still obtain the life and dreams in the United States that their relative wanted to share with them.
Aquino & Aquino, A Professional Law Corporation, also handles family law, employment discrimination, unlawful termination, criminal defense, personal injury, wills, and living trusts.