By Attorneys Robert L. Reeves and Jeff L. Khurgel
A primary goal of United States immigration policy should be the reunification of family members. Every day thousands of U.S. citizens and lawful permanent residents file visa petitions to unite their family members. After the filing of a visa petition, a U.S. citizen or lawful permanent resident must wait for the approval of the visa petition and for their visa number to become available. A complicated immigration scenario can emerge when the petitioner dies prior to his family members immigrating to the U.S. or their adjustment of status if in United States. If there is no petitioner left to unite with family members, does the Immigrant Visa Petition die with the petitioner?
The answer depends on when the petitioner passes away and where the petition was filed. Recent guidance from the Immigration Service has reaffirmed the effect of the petitioner’s death on an Immigrant Visa Petition that has not yet been approved. A November 2007 Immigration Service memorandum directs Immigration Officers to deny Immigrant Visa Petitions when the petitioner dies prior to the Immigration Service acting on the visa petition. However, the memorandum also points out that this rule does not apply when the Immigrant Visa Petition is coupled with an application for adjustment of status filed within the jurisdiction of the 9th Circuit Court of Appeal which covers California, Nevada, Arizona, Alaska, Hawaii, Idaho, Montana, Oregon, or Washington or Guam.
In the Ninth Circuit the Immigration Officers are required to follow the Court’s decision in Freeman v. Gonzalez. The Freeman case held that the beneficiary of an immediate relative petition remains eligible even after the death of the petitioner. This controlling precedent allows an immediate relative beneficiary to continue to benefit from the Immigrant Visa Petition despite the death of the petitioner. The petitioner in the Freeman case filed a visa petition with an application for adjustment of status with the USCIS, but died prior to the interview. Thus, the holding applies to cases wherein the beneficiary is in the U.S. and filed for adjustment to permanent resident status. It remains to be seen whether the Freeman case will apply to other than immigrant family visa categories.
If the petitioner dies after the Immigrant Visa Petition has been approved, but before the beneficiary is able to immigrate to the U.S., the death of the petitioner results in the automatic revocation of the Immigrant Visa Petition. The Immigration Service may reinstate the revoked Immigrant Visa Petition for humanitarian reasons (commonly called “Humanitarian Reinstatement”). Humanitarian Reinstatement requires the beneficiary to establish that it would be inappropriate to revoke the application due to certain humanitarian factors. These factors include family ties in the United States and whether there was a special relationship between the petitioner and the beneficiary; health factors including any health concerns relating to the beneficiary’s family; financial or educational factors; and any other special factors that should be considered.
Some of these special factors the Immigration Service may consider include the length of time the beneficiary spent waiting for the visa to become current or any special need for the beneficiary in the U.S. like caring for other relatives. It is in the Immigration Service’s discretion to grant Humanitarian Reinstatement, there are several procedural requirements that must be followed in every case. First, a family visa petition may only be reinstated if the visa petition has already been approved. Additionally, the beneficiary must file a written request and attach the appropriate supporting documentation. There is no filing fee, but the request must include, among other things, a comprehensive declaration and supporting documentation.
Widows and widowers have additional legal rights outside of the humanitarian reinstatement or the Freeman case. A statute allows widows or widowers, who were married 2 or more years to a U.S. citizen, to file a self-petition. The self-petition must be filed within 2 years from the death of their U.S. citizen spouse.
The death of a petitioner may destroy the chances of family members to immigrate to the U.S. or if they are in the U.S. to become U.S. permanent residents. For many families the consequences of a petitioner’s death can be tragic and complicated. Although a petitioner’s death may trigger the denial or automatic revocation of an immigrant visa petition, important exceptions may apply. In instances where a petitioner has passed away, it is crucial that the family members ascertain whether they are still eligible to immigrate.