The Surviving Relatives Law

June 12, 2011

Near the end of his first year in office, President Obama signed into law amendments to the Immigration & Nationality Act (INA) reversing the longstanding rule that visa petitions filed for relatives are automatically revoked upon the death of the Petitioner. This law ameliorates the harsh, unfair consequences resulting to thousands of beneficiaries of family and employment-based visa petitions who have been waiting for years for their priority dates to become current, only to have their hopes dashed by the untimely death of the Petitioner before they could obtain their green cards.

For decades, the rule was simple: The Petition dies with the Petitioner. The only way to avoid application of that law was through approval of a Request for Humanitarian Reinstatement with the office of the USCIS that originally approved the petition. Since the decision to grant such a request was solely within the discretion of the USCIS, these applications were assigned a very low priority within the USCIS offices, causing bereft Beneficiaries of petitions filed by recently deceased US Citizens and Green card holders to suffer inordinate delays and additional anxiety while their fate lay in the hands of a USCIS officer.

Under the new law, the rule is completely reversed: The Petition survives the death of the Petitioner. The only way this rule does not apply is if the USCIS, in its discretion, believes that the revalidation of such a petition would be "against the public interest." In the vast majority of cases, the Beneficiaries of such petitions are merely innocent victims of long delays in visa availability and the tragic loss of their petitioning relative. The new law removes the additional penalty of losing any opportunity to obtain lawful permanent resident status to these already suffering victims.

Article provided by Hanlon Law Group, P.C.
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