Relief for Surviving Relatives

The time to wait for a visa can sometimes be painfully long. Each visa category has a different waiting period, and depending on which country the beneficiary is from, the wait can be even longer. Of course, immediate relatives have no wait, but for everyone else, there can be. Immediate relatives are limited to parents, spouses, and unmarried children under 21 of U.S. citizens. Everyone else, may have a wait time for their visa to become available. For example, for Filipinos, a petition from a U.S. citizen parent to a married child over 21, the current processing time is approximately 19 years! A lot can happen in 19 years, and sometimes that includes the death of the petitioner. However, there may be relief for the beneficiary of these petitions.

If the beneficiary is outside the U.S., they must seek humanitarian reinstatement of the petition filed on their behalf. The petition must have been approved before the petitioner died, and cannot be pending. Also, the principal beneficiary is the only person with standing to make such a request. Moreover, you must have a substitute sponsor that can take the place of the petitioner. The substitute sponsor must be a U.S. citizen or permanent resident, be 18 years old, and be a spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian. This request is completely discretionary, which means they are not always successful.

If the beneficiary resided in the U.S. when the petitioner died, they can have relief under Section 204(l). This would allow the beneficiary and/or the derivatives to get a green card in the U.S. To be eligible, at least one beneficiary had to have resided in the U.S. when the petitioner died. Unlike with a humanitarian reinstatement, the petition does not even need to have been approved at the time of petitioner’s death! But, like the humanitarian reinstatement, the beneficiary will need to find a substitute sponsor, which is listed above. This is also a discretionary benefit.

Losing your loved one is difficult, but losing out on a petition that was filed for you sometimes, decades before makes the situation sting a little more. However, not all hope is lost. Work with a knowledgeable attorney to see what remedies you have after the loss of a loved one who filed a petition for you.

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