What Happens If My Sponsor Dies Before a Visa Number Becomes Available?

Immigrating to the United States based on a family based application is a long and tedious process especially for those who are outside of the “immediate relative” category. Once an application is approved, it can take over 20 years for a visa number to become available depending on what preference category your case belongs to. Unfortunately, if the petitioner dies while you are waiting for a visa number, the petition will automatically be revoked.

You can apply for what is termed “humanitarian revalidation” seeking reinstatement of the I-130 petition from the Attorney General, but there is no guarantee the application will be approved. The Attorney General has absolute discretion and looks at several factors, including but not limited to, the disruption of the family unit, any hardship to a U.S. citizen or lawful permanent resident family, the age and health of beneficiary, the length of the beneficiary's residence in the United States, whether the beneficiary has a foreign residence to which he or she can return, any undue delay in processing the petition or visa; and the extent of the beneficiary's family ties in the United States. In addition, the I-130 petition must have been approved before the petitioner’s death and a close family member (parent, mother-in-law, father-in-law, sibling, child, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild) must serve as an alternate sponsor. Qualifying for humanitarian revalidation is extremely difficult and there is generally no appeal. It is advisable to work with a reputable immigration attorney to assist you with the process. In addition, humanitarian revalidation does not extend to the beneficiary’s children.

Fortunately, a new law permits the approval of a visa petition if the beneficiary resided in the United States when the petitioner passed away and continues to reside in the United States when the petition was approved. The law gives the USCIS discretion to deny the petition under the new law where “that approval would not be in the public interest,” and the decision is not appealable. However, USCIS officers are not expected to use their discretion to deny petitions absent compelling discretionary factors. The overriding issue is whether the beneficiary qualifies for the visa classification sought.

It’s important to understand that the new law does not change the requirements for obtaining permanent residence. A visa number must be available, the beneficiary must not be otherwise inadmissible, and the beneficiary will still need a substitute sponsor willing and able to provide an affidavit of support (Form I-864). Moreover, for beneficiaries that are not “immediate relatives”, being out of status creates an additional problem. To adjust status to permanent residence, you will also need to qualify under Section 245(i) which basically allows you to adjust status if you were either: petitioned before April 30, 2001 and were physically present in the United States on December 21, 2000, or you were petitioned before January 14, 1998. The fee for seeking section 245(i) relief is $1,000.00. Consult a San Diego immigration attorney for assistance.