PeeLee

Hello everyone,

I am new to this forum and was hoping to get some much needed advice on what seems like a complicated situation. Your experience/knowledge would be greatly appreciated.

My partner and I are both from the UK, his Mother immigrated to USA almost 20 years ago, he stayed here at the time as he was a young adult, already 21.
At a later point the started and I-130 (unmarried son over 21) petition for him which was approved and he received his I-797 notice of action/approval.
Since then he has been waiting for his priority date, during this time his Mother was diagnosed with terminal cancer and 3 years ago she sadly passed away.
His application was not cancelled or revoked and now his priority date has come up and he can proceed to the next step(payment, interview etc). We'd like to find out if he'd be able to continue with the Visa process from where he is. He has a brother whom is a greencard holder and can be a substitute sponsor for him and can complete the I-864 affidavit of support.
We'd also like to find out if he is able to continue with his Visa process, what would be the best route for me either go with or join him at some point. We have 2 young children age 3 and 2 (who from my research I know can be part of his Visa application as derivatives) and would like to get married soon but would like to find out where we stand with immigrating.

Any advice or information that can be give would be greatly appreciated.

PeeLee

tom169

I'd consult with an immigration attorney. Depending on when the death occured in the process could affect this.

Rete

It is my belief that the petition died with his mother. It is unrealistic to think that the USCIS would revoke and/or cancel the I-130 upon his mother's death. Did he contact them and tell them that she died.

PeeLee

Thank you very much for responding. After doing some research I found some information on USCIS's website about death of a petitioner and relief of surviving relatives under section 204 (l). It says:

Petition was Approved

If your immigrant petition was already approved before your relative died, the approval is automatically revoked by function of law (see 8 CFR 205.1(a)(3)(i)(B) and (C)). Section 204(l) can still apply to a case that was revoked, so the revocation does not mean that your case is over. Rather, “revocation” and “reinstatement” simply provide a procedural mechanism that lets USCIS verify whether section 204(l) applies to your case and, if it does, to decide whether to exercise discretion favorably.

When you request and are granted section 204(l) relief, USCIS reinstates the approval of the petition, so that you can continue the process of obtaining lawful permanent residence (Green Card). This is a technical difference because of how the law is written and other laws and regulations that existed before section 204(l) was enacted, but the outcome is the same: when section 204(l) relief is requested and granted, you can continue the immigration process.

I do believe that my partner would qualify to continue under this under this act, as he was approved before his mother passed away. We will seek advice from a immigration Lawyer about this though. I

If there is there is anyone that has gone through this kind of process at all, I'd be very grateful for you insight.

civilservant

No, he doesn't qualify for relief under 204(i) UNLESS he is already in the US.

https://www.uscis.gov/greencard/sect...ving-relatives

I'm sorry but the petition died with his mother, you cannot 'swap out' the mother for the brother either. The brother needs to file a new petition, with a new priority date. That'll take another 15 years.

PeeLee

Thank you again for the insight.

There is also Humanitarian reinstatement under section 204 which is a discretionary decision which would then allow for a substitute sponsor, such as his brother.

'Humanitarian reinstatement may only be requested by the principal beneficiary when the petitioner of an approved Form I-130, Petition for Alien Relative, has died'
'Most immediate relatives and family-based immigrants are required to have Form I-864, Affidavit of support Under Section 213A of the Act'
'Humanitarian reinstatement is a discretionary benefit. Exercising discretion means weighing positive factors against negative factors to make a decision. In addition to meeting the basic requirements for humanitarian reinstatement, your request must warrant a favorable exercise of discretion, meaning that the “pros” in granting your request outweigh the “cons.” '

This would allow him to continue with his petition even though he is outside the US. This is once again is a discretionary decision but he could still file a request to see if they would allow it.

civilservant

I can assure you, with certainty, they won't. You live in the UK, which is one of the most well developed countries in the world, that has no civil war or genocide going or, nor are there armed gangs roaming the streets killing people.

Where are the compelling humanitarian reasons? Don't throw money at an attorney chasing after this, it isn't going to happen I'm afraid.

scrubbedexpat099

Evidence that a favorable exercise of discretion is warranted, which may include, but is not limited to:

• Impact on family living in the United States (especially U.S. citizens, lawful permanent residents, or others lawfully present);
• Advanced age or health concerns;
• Lawful residence in the United States for a lengthy period;
• Ties or lack thereof to your home country;
• Other factors, such as unusually lengthy government processing delays; and
• Any and all other factors you believe weigh in favor of reinstatement, with supporting documentation.

Failing which his sibling could look at petitioning him, however it is possible the children will age out.

PeeLee

Thank you Boiler, this is what I read and was also going off of. Trying to see if he will qualify mainly from the lengthy waiting time for family preference for beneficiaries and the strong family ties. Otherwise the latter, a sibling sponsor.