REQUEST FOR REINSTATEMENT
OF DECEASED PETITIONER
By Roman P. Mosqueda, Esq.
By letter dated November 21, 2003 (received on December 22, 2003) of Fairy D. White, Supervisory Program Specialist of the U.S. Citizenship and Immigration Services (USCIS), to the author, she stated the guidelines for reinstatement of the approval of the family visa petition of a deceased petitioner.
Citing Public Law 107-150 (The Family Sponsor Immigration Act of 2001), which was signed by the President on March 13, 2002, and became effective upon enactment, Ms. White invoked the amendments to the Immigration and Nationality Act by aforesaid Public Law 107-150: sections 212(a)(4)(c)(ii) and 213A(f)(5).
Indeed, such amendments permit another eligible sponsor, from a pool of certain family members, to become a “substitute sponsor”, if a family visa petitioner dies after approval of the visa petition, and the Attorney General has determined that the approval of the original sponsor’s classification petition should not be revoked for humanitarian reasons.
Substitute
Sponsor For
Section 213A(f)(5) of the Immigration and Nationality Act (as amended) permits “a spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild of a sponsored alien or a legal guardian of a sponsored alien” to be an alternative sponsor in substitution of the original sponsor.
Two conditions are required to be met for substitution of an alternative sponsor, to wit:
“(i) the individual petitioning under section 204 for the classification of such alien died after the approval of such petition; and
(ii) the Attorney General has determined for humanitarian reasons that revocation of such petition under section 205 would be
inappropriate.”
The amendments made by the Family Sponsor Immigration Act of 2001 are applicable “with respect to deaths occurring before, on, or after the date of enactment (March 13, 2002), except that, in the case of a death occurring before such date, such amendments shall apply only if:
(1) the sponsored alien:
(A) requests the Attorney General to reinstate the classification petition that was filed with respect to the alien by the deceased
and approved under Section 204…before such death; and
(B) demonstrates that he or she is able to satisfy the requirement of section 212(a)(4)(c)(ii) of such Act (on execution of an
affidavit of support by the alternative sponsor)…; and
(2) the Attorney General reinstates such petition after making the determination described in section 213A(f)(5)(B)(ii) of such Act…”
Standard
of Humanitarian
Ms. White in aforesaid letter of November 21, 2003, further stated that “the determination of whether or not to reinstate a petition in such circumstances” is placed with the U.S. Citizenship and Immigration Services (USCIS), “through the authority vested in the Attorney General.”
She warned that: “the USCIS is not required in any given case to reinstate approval of a visa petition. Reinstatement continues to be a matter of discretion, to be exercised in light of the fact of each individual case, particularly those cases in which failure to reinstate would lead to harsh result contrary to the goal of family reunification”.
Lastly, Ms. White now informs us that: “A request for reinstatement must be forwarded to the USCIS office that initially approved the petition.”
So, the request for reinstatement should not be sent anymore to: U.S. INS Headquarters, 425 I Street, NW Room 3260, Washington D.C. 20536, Attn: Attorney General/Director, as previously announced.
For California, the Form I-130, Immigrant Petition for Relative, is usually filed with and approved by the California Service Center, P.O. Box 30111, Laguna Niguel, CA 92607-0111. And the request for reinstatement of the approval thereof should be sent to that Service Center for determination.
HAPPY NEW YEAR!