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Thread: I-130 Father LPR petitioner dies, can LPR mother assume as petitioner?

  1. #1
    Guest
    My father has an approved I-130 petition for my single (over21) and married siblings with 1996 priority date (Philippines). My dad did not include my mom's name as co-petitioner when he filed the I-130.

    My dad has been battling cancer for the last 6mos. At this time, the cancer has totally spread out and we were told he may not live longer than 2mos.

    1)Can my mom assume the petition in the event my father dies?

    2) Is it possible to request INS to advance visa numbers for my siblings or at least request for tourist/V visas for them to come and visit my dad before his time is up? We were told they could not be given tourist visas because of the pending petition.

    I would appreciate any advice/help legal or otherwise.

    Sincerely,
    Ronald

  2. #2
    Guest
    My father has an approved I-130 petition for my single (over21) and married siblings with 1996 priority date (Philippines). My dad did not include my mom's name as co-petitioner when he filed the I-130.

    My dad has been battling cancer for the last 6mos. At this time, the cancer has totally spread out and we were told he may not live longer than 2mos.

    1)Can my mom assume the petition in the event my father dies?

    2) Is it possible to request INS to advance visa numbers for my siblings or at least request for tourist/V visas for them to come and visit my dad before his time is up? We were told they could not be given tourist visas because of the pending petition.

    I would appreciate any advice/help legal or otherwise.

    Sincerely,
    Ronald

  3. #3
    Guest
    try reading this article of gurfinkel, best of luck kabayan !
    NEW HOPE FOR FAMILIES OF DEAD PETITIONERS

    by Michael J. Gurfinkel, Esq.


    --------------------------------------------------------------------------------



    Dear Atty. Gurfinkel:

    Years ago, I was petitioned by my U.S. citizen father. Unfortunately, my father died while I was waiting for my priority date to become current. Is there any hope for me to immigrate under my father's petition even though he has passed away?

    Very truly yours,

    R.T.

    Dear R.T.:

    Under U.S. immigration laws, the death of a petitioner ordinarily results in the automatic revocation of the petition, unless, "the Attorney General [INS] in his or her discretion determines that for humanitarian reasons revocation would be inappropriate". This particular regulation is commonly referred to as "humanitarian revalidation".

    In other words, even though a petitioner has died, the INS may revalidate the petition, if a strong case is presented, demonstrating the "humanitarian" factors involved to the family members.

    However, even when a person is granted humanitarian revalidation by INS, there was a separate, conflicting law (relating to affidavits of support) which operated to effectively nullify humanitarian revalidation. The law relating to affidavits of support required that the petitioner must, in all cases, submit an affidavit of support. Obviously, if a petitioner was dead, he or she could not sign or submit an affidavit of support. Thus, many people who were successful in obtaining humanitarian revalidation were, nevertheless, unable to obtain immigrant visas and/or greencards because of the separate requirement of having a dead petitioner submit an affidavit of support.

    Just recently, Congress finally rectified this problem. On February 26, 2002, Congress passed a bill (HR 1892), the "Family Sponsor Immigration Act of 2002", which will amend the Immigration and Nationality Act, to allow the acceptance of an affidavit of support from another person (aside from the petitioner), if the original petitioner has died and the INS has granted humanitarian revalidation. The persons who could be eligible to "replace" the petitioner for purposes of submitting affidavits of support would include the alien's spouse, parent, mother-in-law, father-in-law, brother, sister, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild of the sponsored alien, or a legal guardian of a sponsored alien, who are either U.S. citizens or lawful permanent residents (green card holders).

    Therefore, even of a petitioner dies, it is possible for a person to nevertheless be able to obtain an immigrant visa and/or green card if:

    1. The alien obtains humanitarian revalidation from INS; and
    2. One of the above-referenced relatives agrees to act as a sponsor in place of the deceased petitioner.

    Please also be aware that the alien's priority date must also be current in order to obtain an immigrant visa and/or a green card, even if humanitarian revalidation is granted. For example, if someone was petitioned as the married child of a U.S. citizen in 1995, he or she would not be presently eligible for a visa, even if he obtained humanitarian revalidation. This is because INS and the Embassy are only processing married children who were petitioned in 1988.

    In your case, if your priority date is current, and you are able to obtain humanitarian revalidation, this legislation (HR 1892), could dispense with the old requirement of having the petitioner submit the affidavit of support. However, I have to caution people that humanitarian revalidation is the exception to the rule. (The rule is that the death of a petitioner results in automatic revocation of the petition.) Thus, just because a person applies for humanitarian revalidation does not mean that INS will approve or grant their case. INS acts on these requests on a case-by-case basis. I would strongly advise people to seek the advice of a reputable attorney, who can analyze their case, and assist them in connection with the presentation of their case to INS, to demonstrate the humanitarian factors in accordance with INS criteria.

  4. #4
    Guest
    thanks bugsy for the insightful information....seems to me that the "humanitarian revalidation" may be a difficult route to take...is there something that my dad can do at this time, while he is still alive, to help in the process?

  5. #5
    Guest
    Nope, that is the only route.there is no harm in trying as you know no politicians can solve your problem,perhaps more prayers or miracles.

  6. #6
    Guest
    Unfortunately there is nothing your father can do to expedite the petition.Remember the American system on immigration oftentimes is impersonal,does not care of the emotional consequences of your father's impending death.If only your dad's will can be use to gain leverage, but of course the INS may interpret it as form of "emotional blackmail".

  7. #7
    Guest
    thanks bugsy...truth is i do not see any principle-based logic in all of this...when a child's parent dies, its human nature that the other surviving parent will take over..why can it not hinge on that?

    at any rate, we are contemplating on sending a request letter to INS (signed by my dad) asking for transfer of the petition to my mom's name and we'll see what will happen (no harm in trying)....has anyone had/heard of any experience like this and what has come out of it?

  8. #8
    Guest
    Yes, i understand perfectly as a Pinoy your sentiments on this issue.But the reality is that INS and the legal system here has always been different if you have been and seen both worlds.
    Hopefully, we can hear more comments from others in this forum,Relax lang brod!

  9. #9
    Guest
    thanks very much bugsy...wait and see what others may have to say...:-)

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