February 18, 2008: Does The I-130 Petition Die When The Petitioner Dies?
Does The I-130 Petition Die When The Petitioner Dies?
I just want to know if my petition from my father is still valid. He died 3 years ago. My priority date is January 28, 1994.
— Domagsang Jane
Generally, the saying goes: “The I-130 petition dies with the Petitioner.” This means that when the Petitioner dies, the Beneficiary is no longer eligible to use that visa petition to potentially become a permanent resident of the United States. However, if the visa petition has been approved and the Beneficiary is merely waiting for a visa number to become available so s/he can adjust their status to permanent resident, the Beneficiary may be able to use the approved visa petition despite the fact the Petitioner is deceased.
According to 8 Code of Federal Regulations (“8 C.F.R.”) section 205.1(a)(3)(i)(C), the petition is automatically revoked upon the death of the petitioner unless the United States Citizenship and Immigration Service (“USCIS”) decides, as a matter of discretion, that for humanitarian reasons and in light of the facts of a particular case, that the approved petition should not be revoked. USCIS is not required in any given case to reinstate approval of a visa petition. Rather, it will look at whether failure to reinstate would cause harsh results contrary to the goal of family reunification. Furthermore, “USCIS may make this determination only if the principal beneficiary of the visa petition asks for reinstatement of the approval of the petition and establishes that a person related to the principal beneficiary in one of the ways described in section 213A(f)(5)(B) of the Act is willing and able to file an affidavit of support under 8 CFR part 213a as a substitute sponsor.” Substitute sponsors include a spouse, parent, mother-in-law, father-in-law, sibling, grandparent, grandchild, among others. Unfortunately, humanitarian factors do not come into play if the Petitioner dies before the petition is approved.
Before going forward with any further immigration procedures, it would be wise to consult with an experienced immigration attorney to discuss all of your options, if any.
Evan Shane and Michael Shane, Immigration Attorneys