DEATH OF A PETITIONER: WHAT’S NEXT?

Beneficiaries of family-based immigrant visa petitions find themselves in a quandary when their petitioners die before they immigrate or obtain lawful permanent residency in the United States. Under the pertinent federal regulations, family-sponsored petitions are revoked automatically upon the death of the petitioner if the petitioner dies “before the beneficiary’s journey…to the United States commences” or “before the decision on [the beneficiary’s] adjustment application becomes final.” Fortunately, in certain circumstances, the Attorney General—through the Bureau of Citizenship and Immigration Services (BCIS) (formerly known as the Immigration and Naturalization Service)—can revalidate the immigrant petition and permit the beneficiary to immigrate or become a lawful permanent resident (LPR).

The Code of Federal Regulations provides that a family-based petition will not be revoked automatically upon the death of the petitioner where the Attorney General, in his discretion, “determines that for humanitarian reasons revocation would be inappropriate.” Factors that the Attorney General has considered in determining whether the humanitarian revalidation of an immigrant visa is warranted includes: (1) disruption of an established family unit; (2) hardship to U.S. citizen or LPR family; (3) age and health of beneficiary; (4) length of beneficiary’s residence in the United States; (5) whether beneficiary has a foreign residence (if in the U.S.) to which he can return; (6) undue delay by BCIS or the consulate in processing the petition or visa; and (7) extent of beneficiary’s family ties in the United States.

If the Attorney General determines for humanitarian reasons a petition shall not be revoked upon the death of the petitioner, he will reinstate the visa petition and permit the substitution of a close family member to serve as the primary sponsor. Under new regulations, the alternate sponsor must be a close relative of the beneficiary: spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild. The sponsor must meet all other criteria of a sponsor signing the affidavit of support of a family-based petition, including maintaining an annual income equal to at least 125% of the Federal Poverty Guidelines. This law may apply retroactively to deaths occurring prior to the date of its enactment.

Humanitarian revalidation of an immigrant visa petition is not broadly applicable to all situations where the petitioner has died. The BCIS and Board of Immigration Appeals (BIA) have interpreted that, under the Code of Federal Regulations, eligibility for humanitarian revalidation requires that the petition was approved prior to the petitioner’s death. The BCIS and the BIA have also stated that the beneficiary’s application for permanent status or an immigrant visa must be pending a final decision when the petitioner died. Matter of Varela, 13 I& N Dec. 453 (BIA 1970). In other related decisions, the BIA has held that it does not have jurisdiction to review a decision by the BCIS to revoke a visa petition upon the death of the petitioner. The BIA has also expressed that it lacks jurisdiction to review a decision by the BCIS to deny a request for humanitarian revalidation, as visa petitions are a matter solely within the discretion of the agency’s district directors. Matter of Weisinger 16 I & N Dec. 480 (BIA 1978); Matter of Zaidan, 19 I & N Dec. (BIA 1985). However, there may be an estoppel argument if the protracted delay of approval of the application for permanent residency—and the petitioner dies during this delay—is due to serious BCIS misconduct.

Lastly, a special exception exists for the surviving spouse of U.S. citizens. Under §210(b)(2)(A)(i) of the Immigration and Nationality Act (INA), “an alien who was the spouse of a citizen of the United States for at least two years at the time of the citizen’s death and was not legally separated from the citizen at the time of the citizen’s death . . . shall be considered . . . to remain an immediate relative after the date of the citizen’s death” if the surviving alien spouse files a special petition within two years after the death and only until the spouse remarries.

To determine eligibility for a humanitarian reinstatement of an approved family-based visa petition or other immigration options where the petitioner has died, please consult a licensed, knowledgeable and experienced immigration attorney.