Reinstatement of Family Petition when Petitioner Dies

Generally, an approved family-based petition is considered automatically revoked upon the death of the petitioner. However, the approval may be reinstated for humanitarian reasons.

Humanitarian Consideration

Reinstatement of the petition is a matter of discretion for the Attorney General. The law establishes the factors to be considered in making a reinstatement determination. It would be best to submit as much available documentation identifying and demonstrating the humanitarian reason for the reinstatement.

Humanitarian exception may be made upon evidence of “long time residence and any equity in the US; relationship with other family members with evidence of their immigration status in the US; health related factors that would establish the need for reinstatement of the petition; current political or religious conditions that would indicate that the beneficiary would suffer if not permitted to immigrate to the US.” Other evidence showing that non-reinstatement would lead to a harsh result contrary to the goal of family reunification may also be submitted.

It must be noted though that economic reasons is generally not considered a sufficient humanitarian reason that would warrant reinstatement unless it is of “such an extreme nature as to possibly cause physical harm to the beneficiary.”

Substitute Sponsor

When the USCIS reinstates the petition, substitute sponsorship is allowed under the Family Sponsor Immigration Act of 2002. Under the law, only the following can become substitute sponsors: spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years old), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent or grandchild or legal guardian of the alien beneficiary.

The substitute sponsor will execute the Affidavit of Support (I-864), which must be signed before a notary public.

When completed, the I-864 essentially contains information on the legal basis of the sponsorship, the income and assets of the sponsor, the qualifying income level of the sponsor based on his / her household size (which is 125% of the federally-established poverty level); and a promise on the part of the sponsor to support the alien. Income tax returns and employment letters of the sponsor are also submitted with I-864.

Evidence of the substitute sponsor’s immigration status or US citizenship must also be submitted.

Substitute sponsorship is allowed whether the petitioner died before, on or after March 13, 2002, the date of enactment of the Family Sponsor Immigration Act.