IN Jamaica, we often hear people refer to petitioning as ‘filing’. Frequently, they are confused as to who the petitioner is and who the beneficiary is. A US citizen who is living in the US and is petitioning for another close relative to migrate to the US is the principal applicant, also known as the petitioner, in terms of filing an I-130 petition. The beneficiary is the immigrant abroad, who will then have to go through consular processing.

The Petitioner Dies

If the petitioner dies before the beneficiary has migrated to the US, the petition is automatically revoked (cancelled). This means that the consular officer will not be able to issue a visa to any of the beneficiaries of the petition and will be required to return the petition to the Department of Homeland Security (DHS). Although your petition may be revoked initially, there are some options that beneficiaries have in order to make a successful immigration case and have their visa approved to travel to the US.

Reinstatement

The principal beneficiary should write to the USCIS office, providing supporting evidence that the original petitioner has died. There is currently no fee for a humanitarian reinstatement letter. The supporting evidence should include the following:

o Your name and that of the deceased petitioner

o The receipt number of the original approved I-130 (which can be found on the receipt notice that was sent)

o A death certificate of the now deceased petitioner

o A new affidavit of support (I-864) filed by a substitute sponsor

Additionally, the beneficiary must show that travelling to the US is of utmost importance. Evidence including the following is generally found to be legitimate:

o Whether the impact of not immigrating to the US will present a significant risk or burden to the beneficiary and/or dependents;

o Whether advanced age or health concerns create a situation where immigrating to the US for medical treatment is the only viable option;

o Ties or lack thereof to one’s home country; and

o Any other factors that would weigh favourably, including supporting documentation.

Obtaining a New/Joint Sponsor

Even though the principal applicant who is applying for legal residence in the US is in a difficult situation, the fact that their petition has been approved before the death of a US citizen does help their case.

For applicants whose petition has not been approved before the petitioner passes away, the situation can be more difficult.

In this case, the prospective beneficiary needs to find a new sponsor. In doing so, they should seek someone who is able to file a petition on their behalf, but also somebody who can meet the federal poverty requirements for an affidavit of support. If an immigrant relative’s substitute sponsor cannot meet the income requirements needed, the person might be able to team up with a joint sponsor.

The joint sponsor must be at least 18 years of age, living in the US, and willing to be jointly liable for the immigrant’s financial support. One of the benefits of this strategy is that the joint sponsor, unlike the substitute sponsor, does not have to be related to the immigrant.

Conversion

If you are a US citizen petitioning for your spouse, that person could, if still unmarried, notify USCIS to convert the filed or approved I-130 to a “self-petition” and continue the application, or else (if no I-130 is on file) submit an I-360.

Finally, in cases where a US citizen spouse has remarried or another family member’s I-130 was never approved, a last possibility, called section 204(l) relief, might allow the case to move forward.

Venice Williams. Justice of the Peace/Attorney-at-Law/Partner. Firm: Lewis, Smith, Williams & Company