Humanitarian Reinstatement 101 -- Atty. Mike Templo
Atty. Mike Templo, abs-cbnNEWS.com | 11/22/2008 4:40 AM
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Waiting for a visa number to become available in family-based petitions can take several years. For example, waiting for a visa number for a fourth-preference category petition, which is a petition filed by a U.S. citizen for his or her sibling, can take as long as twenty-two years!
It is in this waiting period that problems regarding the petition arise.
One of these problems is of the human kind, and not of a technical nature, like say –a documentary deficiency, which can be corrected. This human element I am referring to is the death of the petitioner. To put it bluntly, when the petitioner dies, the petition dies along with him or her. By operation of law, the petition is automatically revoked.
However, there is an exception to this rule, which has been aptly termed – Humanitarian Reinstatement or HR. This exception only applies to I-130 petitions that were approved before the petitioner died.
There are two components to this HR application.
First, the applicant must send a written HR request for the reinstatement of the approved petition to the US Citizenship and Immigration Services (USCIS) office where the original petition was filed. In support of the request, the beneficiary must also explain why the disapproval of the request would lead to hardship. Hardship factors include the following:
(1) Separation from an established family unit;
(2) Hardship to a U.S. Citizen or lawful permanent resident if applicant is not allowed to immigrate;
(3) Applicant is elderly;
(4) Applicant is in poor health and does not have access to treatment;
(5) Applicant has been living in the U.S.;
(6) Applicant has not home to go;
(7) Applicant has strong family ties in the U.S.
Second, the applicant must be able to provide a substitute sponsor who meets the minimum income requirement as set forth in U.S. Poverty Guidelines and who will execute the Affidavit of Support. The substitute sponsor must be at least 18 years of age, and either a U.S. citizen or a legal permanent resident, and must be domiciled in the United States.
But not everyone can act as a substitute sponsor. To qualify as such, that person must be related to the beneficiary as a – Spouse, Parent, Mother-in-law, Father-in- law, Sibling, Child (if at least 18 years of age), Son, Daughter, Son- in-law, Daughter-in-law, Sister-in-law, Brother-in-law, Grandparent, Grandchild, or Legal guardian.
If you are a beneficiary of an immigrant petition that was approved prior to the death of the petitioner, your chances of becoming an immigrant could be revived. You must be able to explain why your petition should be reinstated with specificity and be able to support your assertions with documentary evidence.
Once you are able to come up with your written request, you must then come up with a substitute sponsor that will sign the Affidavit of Support. Before you submit your request, you must seek the assistance of a reputable lawyer in your area who will be able to guide you in putting together your request.
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Atty. Mike Templo will be holding a seminar on U.S. Immigration covering a wide variety of topics from applying for your visa to processing petitions, to penalties for violating immigration rules on Saturday, November 22, 2008 from 2 p.m. to 5 p.m. at the Asian Institute of Management (AIM) Conference Center, Concepcion Room, Makati City. For reservations or more information, you can email at mdt@templolaw.com.
Atty. Michael Templo is an attorney admitted to practice law in New York State and Federal Courts and is a partner at Templo & Templo with offices in New York, USA and Makati City, Philippines. Atty. Templo specializes in US Immigration matters. The discussion above is not intended as legal advice, and cannot be relied upon for any purpose without the services of a qualified professional. For your comments and questions, Atty. Templo can be reached at mdt@templolaw.com or log on to www.templolaw.com.