Continuing a Family Petition after the Death of the Sponsor
Since the World Trade Center disaster, there are reports that many of the victims were either sponsors or beneficiaries of family-based immigrant visa petitions. This article, which is an adaptation of an earlier published article,1 explores ways to assist a family member whose sponsor may have died on September 11.
Section 205 of the Immigration & Nationality Act (INA) authorizes the Attorney General to revoke the approval of any family petition under the immediate relative or preference categories for good or sufficient cause. Under INS' implementing regulation, 8 C.F.R. § 205.1(a)(3)(i), approval of a visa petition on behalf of a relative of the U.S. citizen or a permanent resident is automatically revoked under several circumstances, including death. In the case of death, the petition is revoked upon:
Even if a petition could be reinstated, the requirement for an affidavit of support pursuant to Section 213A of the INA could pose obstacles. INA Section 213A requires all persons who wish to sponsor immigrants to the United States to execute an affidavit of support on their behalf. Thus, if the petitioner died without signing an affidavit of support, the humanitarian exception provision becomes meaningless.
Furthermore, the petition for alien relative (Form I-130) petition must be approved prior to the sponsor's death and before the humanitarian exception may be invoked. In immediate relative situations, the Form I-130 and application for adjustment of status (Form I-485) are submitted simultaneously with the INS. Both applications are adjudicated only at the interview. If the petitioner dies prior to the interview, the humanitarian exception may not apply.
In light of the September 11 events, it is hoped that the INS will liberally revalidate the petition under the humanitarian exception. It is also hoped that the INS will amend its regulation to allow another individual to submit an affidavit of support in the event that the petitioner did not submit one before his or her death. If the absence of an affidavit of support becomes a stumbling block, it is hoped that a federal court would be sympathetic.
Although there are no reported decisions concerning affidavits of support issues, previous challenges in federal court have been successful in cases where the INS refused to revalidate or refused the petition under the humanitarian exception when the petitioner died. The leading case is Pierno v. INS, 397 F.2d 949 (2nd Cir. 1968).
Early in 1964, while in the country pursuant to a privilege of voluntary departure following a deportation proceeding, Angela Vista, an alien, married Anthony Pierno, a citizen of the United States. She moved to reopen the deportation proceeding based on her marriage to a US citizen. The proceedings were reopened and just before the case would have been approved, Anthony Pierno's son filed an annulment action against Angela and Anthony Pierno in a New York State Court. Further immigration proceedings were stayed pending the outcome of the annulment action. Seven days after the annulment action was dismissed, Anthony Pierno died. Ms. Pierno's case was denied and she sued the INS in federal court. The Court of Appeals held in Ms. Pierno's favor stating that automatic revocation was inappropriate when the petitioner died during an inordinate delay in considering the visa petition, resulting from unusual circumstances.
The humanitarian factors would doubtlessly be far greater when the beneficiaries involve spouses and minor children who have been living in the United States. On the other hand, adult beneficiaries with families of their own and living overseas would most likely not lead to a favorable exercise of discretion.
If the I-130 petition had not been approved prior to the petitioner's death, the humanitarian exception would not apply. However, one court was able to resolve this knotty problem.
Clara Sanchez-Trujillo v INS, 632 F. Supp. 1546 (District of N. Carolina, April 21, 1986) revolves around the fact that the INS misled the petitioner. Sanchez filed a petition on behalf of his daughter who was born out of wedlock. The INS denied the petition on grounds that he was not eligible to file the petition if he had never been married to the mother. This was a misstatement of the law. As long as he had legitimated his plaintiff daughter before her eighteenth birthday, Sanchez was eligible to file a petition on her behalf.
About six years later, the plaintiff was advised that her father's petition could have been approved but for the INS' error. By then her father was suffering from acute schizophrenia, and before he could refile the petition, committed suicide. The plaintiff then filed with the INS a Motion to Reopen of the I-130 petition previously filed by her father and denied. The INS denied the Motion and plaintiff sued in the District court in North Carolina.
The Court held that the plaintiff was "thrown off' by the INS' misstatement of the law to her father. If the INS had properly processed her father's petition, she no doubt would have obtained a decision from the INS before her father's death six years later. The court retroactively approved the petition, citing Pierno v INS, supra, and held that the revocation of the petition would be inappropriate under the humanitarian reasons exception. This case is remarkable for its innovative approach in resolving the problem of a lack of an approval prior to the petitioner's death.
Before resorting to the federal courts, it would be best if Congress passes a bill that would ameliorate the situation. Last summer, the Family Sponsorship Immigration Act of 2001 was initiated in both the House (H.R. 1892) and the Senate (S. 1167). This bill will allow potential immigrants to use another sponsor on their affidavit of support if their original US spouse dies while they are waiting for a green card. Let us hope that Congress passes this legislation in light of the horrific events that took place on September 11.
1 See Mehta, "Death of a Family Member During the Immigration Process - Strategies for Overcoming Automatic Revocation of the Petition," Immigration and Nationality Handbook, 1998-99 edition, Vol. II (p.469), AILA.
About The Author
Cyrus D. Mehta, a graduate from Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration & Nationality Committee of the Association of the City Bar of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or firstname.lastname@example.org