Approved I-130 but ...

[aloha08 0]

The petitioner has since passed away. The priority date was in 1997, yet visa numbers with the NVC are still in 1992 (after jumping back from 1994 in 2007, for whatever reason). What is the beneficiary able to do? My family and I are U.S. citizens, so is there a way to file a new I-130 without changing the priority date? It has taken over a decade and we don't want it to take another decade.

[YuAndDan 153]

I would contact NVC and ask if another qualified family member can provide sponsorship (I-864) when the time that the visa number comes up.

[t0+ 1]

Can u give us a little more info...Was the petition approved before the petitioner passed away?

If yes, you definately have a possibility to continue.

If not, USCIS will not reinstate the approval. You may be able to get the approval re-instated and that would only be possible if you live within the 9th circuit court of appeals juridisdiction.

[aloha08 0]

Yes, the I-130 was approved in 1997, and the petitioner passed away in 2006. We are considering hiring an immigration lawyer since we don't want to accidentally have a misunderstanding or something and the priority date is changed. Also, does anyone have any idea why the visa date retrogressed from 1994 back to 1991 around June/July last year? It seems like it will take another decade just because of that.

[diadromous mermaid 36]

The petitioner has since passed away. The priority date was in 1997, yet visa numbers with the NVC are still in 1992 (after jumping back from 1994 in 2007, for whatever reason). What is the beneficiary able to do? My family and I are U.S. citizens, so is there a way to file a new I-130 without changing the priority date? It has taken over a decade and we don't want it to take another decade.

If the visa petitioner dies after approval of a Form I-130 – in both immediate relative and family-preference cases – then USCIS has discretion to reinstate the pre-death approval. 8 CFR 205.1(a)(3)(i)©(2), as amended, 71 FR 35732, 35749 (2006). This discretion will be exercised favorably only if there is a substitute sponsor who has submitted a Form I-864 in place of any Form I-864 that was filed, or would have been filed, by the deceased petitioner. Id.

[aloha08 0]

Thank you for that response. Is there a site or book you found this in, so others and myself can look through it? Though, I am doubtful of this:

then USCIS has discretion to reinstate

Their wording makes it sound that it may or may not be reinstated

Well, thank you to everyone!

[john & jean 37]

I THINK IT WOULD BE WISE TO SEE A "GOOD IMMIGRATION LAWYER", BEFORE A MISTAKE REMOVES ALL CHANCES.

BEST WISHES

john

[t0+ 1]

Technically speaking, the petition also ends when the life of the petitioner ends, BUT in cases as this, as some of the above have stated, you can have the approval re-instated. You will have to have a substitute sponsor who is related in one of the following ways spouse, parent, mother-in-law, father-in-law, sibling, child (if older than 18), son, daughter, son-in-law, daughter-in-law, sister-in-law, grandparent, grandchild or legal guardian.

The act referenced above this post states that is inappropriate to revoke when there are humanitarian considerations. You'll have to build a case on how not re-instating this approval would be inappropriate due to humanitarian reasons. The goal is to show how failure to reinstate would lead to a harsh result contrary to the goal of family reunification, and any other hardships incurred by the beneficiary due to USCIS not re-instating approval. Possibilities here include the living conditions in the home country, a majority of the family already in the US, etc. So start thinking of what you can say and provide in evidence to show this.

To start the reinstatement, you will have to submit a statement to the USCIS office where the original visa petition was filed formally requesting reinstatement of the visa petition. The statement should list reasons why your case should be re-instated due to humanitarian reasons. Provide as much evidence as possible. The decision outcome is at the discretion of USCIS. You must also submit the following along with your statement:

1. Death certificate of the Petitioner
2. I-797 Notice of Approval of the I-130
3. Substitute I-864 Affidavit of Support from family member (from the list above)
4. Proof of substitute sponsor's relationship to the beneficiary

If you have a copy of the original I-130, it would be a good idea to have it ready just in case you need to verify any information. This is especially true if you are going to consult a lawyer. A word of caution on lawyers…be careful, many lawyers take on cases even though they are not familiar with immigration law. They figure they can just research what they need to know. In any case, it would be to your benefit to research and get as much information as possible, this way you will have a good idea when you have consulted with a lawyer that would help your case.

Good luck!

[t0+ 1]

Thank you for that response. Is there a site or book you found this in, so others and myself can look through it? Though, I am doubtful of this:

then USCIS has discretion to reinstate

Their wording makes it sound that it may or may not be reinstated

Well, thank you to everyone!

Take a look here, this is the actual law as it is written. The above posts are on how this is interpreted.

http://www.uscis.gov/propub/template.htm?v...;hash=0-0-0-227

[diadromous mermaid 36]

Thank you for that response. Is there a site or book you found this in, so others and myself can look through it? Though, I am doubtful of this:

then USCIS has discretion to reinstate

Their wording makes it sound that it may or may not be reinstated

Well, thank you to everyone!

From: Mike Aytes, Associate Director of Domestic Operations

U.S. Citizenship and Immigration Services

Date: November 8, 2007

Re: Effect of Form I-130 Petitioner’s Death on Authority to Approve the Form I-130

Revisions to Adjudicator’s Field Manual (AFM) Chapter 21.2

(AFM Update AD08-04)

http://www.uscis.gov/files/pressrelease/I1...0804_110807.pdf