New Law for Resurrecting Dead I-130 and I-140 Petitions
Under our immigraiton laws, when the petitioner dies, an approved I-130 is automatically cancelled. In the 90’s the United States Citizenship and Immigration Services (USCIS) issued a regulation ameliorating the harsh consequence of death of the petitioner by allowing the I-130 petition to be reinstated or revalidated for humanitarian reasons. In order to seek humanitarian reinstatement fo an approved I-130 petition, the beneficiary must submit a written request to the USCIS office where the original I-130 petition was filed and/or adjudicated. The petition must have been approved and there must be a qualifiying relaitve who will execute the affidavit of support. Whether or not to grant reinstatement is a matter of discretion to USCIS. As such, there is generally no appeal from the denial of a petition for reinstatement or revalidation of I-130 petition for humanitarian reasons.
USCIS uses several factors in approving petitions for humanitarian reinstatement or revaliation. Some beneficiaries would not qualify. The good new is there is an easier alternative to petitions for humanitarian reinstatement or revalidation. On October 29,2009, President Obama passed a law allowing beneficiaries to continue to be eligible for adjustment of status even when their qualifying relative has died. Under the new law, the petition does not have to be approved. It is sufficient that the petitioner has filed the I-130 petition or the I-140 petition has been filed on behalf of the alien worker. The eligibility requirements are: i) the beneficiary must be residing in the United States at the time of death of the petitioner and at the time of application for adjustment of status; and ii) USCIS must not make a finding that the approval of the adjustment of status would not be in the public interest. The new law applies to aliens with pending or approved I-130 petition as immediate relative such as spouse, parent or child under 21 of a U.S. citizen. It also applies to F-1 (single adult son or daughter of U.S. citizen), F-2A (spouse and unmarried child below 21 of a green card holder), F-2B (single adult son or daughter of green card holder), F-3 (married child of a U.S. citizen), and F-4 (brother and sisters os U.S. citizen). Derivative beneficiaries (spouse and children under 21) of an alien with a pending or approved I-140 also qualify. The last group is pending or approved petitions for asylees, refugees, crime victims, and victims of human trafficking.
For beneficiaries who do not fall under the immediate relative category, they have to wait for their priority dates to become current before they can apply for adjustment of status. Oftentimes, by the time their priority date becomes current, they are already out of status in the United States since most of them came here as a visitor and were given only six months to stay. For cases like this, the aliem must have the benefit of 245(i). In order to qualify for 245(i), the I-130 or I-140 petition must have been filed before April 30, 2001. If the petiton was filed between January 14, 1998, and April 30, 2001, the alien must establish that he or she was physically present in the United States on December 21, 2000. A beneficiary of a petition filed befor January 14, 1998, does not have to establish physical presence in the United States on December 21, 2000.