Asian Journal- The Filipino-American Community Newspaper

The long waiting time for immigrant visa processing is an issue of important interest to Filipinos. The Philippines is one of the countries with the highest numbers of immigrants in the United States and longest waiting time period for immigrant visa processing. While visa numbers are immediately available to spouses, parents, and minor children of US citizens, other relatives of citizens and immigrants generally wait several years ranging from 5 to 22 years before they could immigrate into the United States.

A serious problem posed by the lengthy visa processing is the possibility of losing the petition when the petitioner dies before the beneficiary is granted the visa. Under the regulations, when the petitioner dies, an approved I-130 petition is automatically cancelled by operation of law. Thus, even if the petition has been approved and the beneficiary is only waiting to receive the immigrant visa, the petition automatically dies with the death of the petitioner.

However, this problem is ameliorated by an exception provided by the regulations that allows the US Citizenship and Immigration Services (USCIS) to grant discretionary reinstatement of "dead" I-130 petitions based on humanitarian reasons. To qualify for reinstatement, the petition must have been approved prior to the death of the petitioner. To invoke this benefit, the principal beneficiary of the visa petition has to request for reinstatement of the approval of the petition and establish that a substitute sponsor is willing to file an affidavit of support and the particular circumstances of the case warrant the reinstatement of the petition.

The substitute sponsor must either be a citizen or national or a legal permanent resident who is at least 18 years of age and have a domicile in the United States. A spouse, parent, mother-in-law, father-in-law, sibling, child at least 18 years of age, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild of the beneficiary may qualify as a substitute sponsor.

There are no clear rules as to what the USCIS must look at in exercising this discretionary authority. However, there is a clear intent that this authority should be used in those cases where revocation would be clearly contrary to the furtherance of justice. The following factors have been considered:

(1) Disruption of an established family unit;

(2) Hardship to US citizens or lawful permanent residents;

(3) If beneficiary is elderly or in poor health;

(4) If beneficiary has had lengthy residence in the United States;

(5) If beneficiary has no home to go to;

(6) Undue delay by DHS or consular officer in processing petition and visa; and

(7) If beneficiary has strong family ties in the United States.

It is worth emphasizing that there is no appeal from a denial of a request for reinstatement. Hence, if one believes he or she has a good case for reinstatement, it is very important to ensure that the request is properly and completely done. It is always advisable to consult an immigration lawyer for guidance.

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Atty. Joel R. Bander is the partner of Bander Law Firm, LLP. With over 15 years of litigation and immigration experience, Mr. Bander is a leading litigator and accomplished trial strategist. He has successfully handled numerous cases before Federal, State, Civil, and Criminal Judges and has participated in hundreds of arbitrations and trials.

Bander Law Firm, LLP Downtown office address: 1055 W. 7th Street, Suite 1950, Los Angeles, CA, 90017. Tel: (213) 873–4333 Fax: (213) 873–4334. San Gabriel Office address: 1045 E. Valley Blvd., #A215, San Gabriel, CA 91776. Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

( www.asianjournal.com )

( Published on July 2, 2009 in Asian Journal Northern California p. B2 )