Immigration Corner | What happens with our petition now?

Dear Mrs Walker-Huntington,

My wife’s mother filed for her with a priority date of October 4, 2011. Her mother died in 2023. However, my wife’s sister is willing to continue the process.

What will her sister have to do now?

Also, our son who was included in the filing, is in the US working as a recent college graduate. His student visa has expired and he is on Optional Practical Training as facilitated by his employer. He was 23 years old as of September 2024. Is there anyway he could still be part of this filing given the fact that he is already working in the US and is a STEM professional?

I await your usual professional advice.

CR

Dear CR,

When the petitioner for a relative to migrate to the United States dies, the petition dies with them. However, the Humanitarian Reinstatement process allows for a substitute financial sponsor to step in and take over the financial responsibility for the intending immigrant (beneficiary, along with a request for the petition to continue).

The process requires the last US government agency you communicated with to be notified of the death of the petitioner – you must send the death certificate and formal notification. If it is the National Visa Center, they will return the file to US Citizenship & Immigration Services (USCIS), who will revoke the approval of the petition. The beneficiary must then participate in the reinstatement process with USCIS and make a formal request for the humanitarian reinstatement along with producing documents for the substitute financial sponsor and in support of the humanitarian case.

During the migration process, if the petitioner does not have enough income to support the intending immigrant and family, any green card holder or US citizen can become a joint sponsor on the file. However, in the Humanitarian Reinstatement process, the substitute financial sponsor must be a specific relative for the application to be accepted. A sister is one of the specified relatives.

Your son will be eligible to migrate if he qualifies as a child (under 21 years of age) for immigration purposes – please note that it is possible that someone 21 or older can qualify as a child for immigration purposes after a Child Status Protection calculation is conducted. At this time, it is not possible to say whether your son would qualify as a child and be able to migrate if the filing is reinstated. Since your son is employed, he should pursue his own pathway to US residency and not wait on this filing.

Your wife’s filing should be in the F3 preference category – married, adult daughter of a US citizen. The priority date that is being processed in January, 2025, is July 1, 2010. You indicated that the filing date on your wife’s application is October 2011. This means that a visa is not yet available. Please act now and not wait until the National Visa Center contacts you regarding the visa availability. The Humanitarian Reinstatement process takes a while. There is no processing time available for this process and it varies.

Dahlia A. Walker-Huntington, Esq. is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com