Many families immigrate to the United States to start a better life for themselves and their children. However, the harsh rules of the United States immigration laws often ends up dividing families due to limitations such as age and marital status.

Some families come to this country in segments sending one or both parents and then having their children join them. They also obtain permanent residence and eventually citizenship and then immediately file for their parents, brothers, sisters and their respective families to follow to join to the United States.

However a problem occurs when the petitioner dies in the middle of this process. For example, if a United States Citizen files a fourth preference petition for his brother and his brother's family, in most cases it will take more than 10 years for a visa to become available. If the petitioning brother dies before a visa becomes available, the beneficiary brother abroad loses his chance to immigrate to the United States because the family petition is deemed to be invalid. Once the petitioner dies there is no longer a family relationship for INS purposes and therefore no immigration benefits can be incurred.

A remedy to this problem that had been greatly underutilized is a provision in the INA found at INA244(c)(2)(A)(ii) that allows the INS to reinstate a petition for "humanitarian and compassionate" reasons.

Contd.. (1)

This provision was to cure deficiencies in family petitions and in cases that support family unity. In a number of limited cases under this provision an applicant could have his petition reinstated and approved even after the death of the petitioner.

However, in 1996 a new law required all petitioners to submit an affidavit of support in family-based cases. Since a petitioner who is deceased cannot submit such an affidavit, the INS found that it no longer had the authority to reinstate visa petitions based on "humanitarian and compassionate" reasons.

The new Family Sponsor Immigration Act has restored the ability of the INS to grant a waiver based on "humanitarian and compassionate" reasons. This act has specifically restored this waiver in cases where petitioner dies before the beneficiary obtains status in the United States.

The Act provides that the INS may reinstate an approved family-based petition where the petitioner has died after the approval of the petition (1) where there are "humanitarian" circumstances and (2) where there is an "eligible sponsor" to submit an affidavit of support. "Eligible sponsors" include the following persons" spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild or legal guardian of a sponsored alien.

Contd.. (2)

With the current waiting times in a number of the family based categories it is very possible that the petitioner may dies before the priority dates become current. Therefore this Act may be extremely helpful to families that have patiently waited to join their family in the United States from losing time based on the unfortunate death of the Petitioner.

An example in which this Act would be helpful: A United States citizen father petitions for his son who resides abroad in India, but subsequently dies before a visa becomes available. Allowing a son to join his widowed mother in the United States would seem to be a justified humanitarian reason to have the INS reinstate his petition. Therefore this law would allow the United States citizen mother to assume the petition so that her son could join her in the United States. The mother would then have to file an I-864 affidavit of support or find another "eligible sponsor" to do so.

However it is important to note that this relief is discretionary and relied heavily on the INS interpretation of the word "humanitarian". Therefore success under this Act will have to be measured on a case-by-case basis, but at least it provides some relief to the many families that have lost time and the ability to immigrate to the United States due to the unfortunate death of their petitioner.

Self-Petitioning in Cases of Bigamy

Under the Battered Immigrant Women Protection Act the INS allows women or men who are subject to battering or extreme cruelty to file a self-petition with the INS and obtain immigration benefits independent of their spouse.

In a reaction to a growing concern about bigamy that has become prevalent with many immigrants, the INS has recognized that a number of self petitions of battered spouses have been denied for failure to prove that they were in a valid marriage due to a prior marriage of the spouse. In a number of instances the applicant could not prove that their spouse had been previously divorced or was in fact unaware of the spouse's other marriage.

Contd.. (3)

In the United States bigamy is a crime. Bigamy involves being married to more than one individual. Under the laws of the United States a marriage based on bigamy is null and void. Therefore even if you partake in all of the formalities of marriage, including religious and civil ceremonies, if one of the parties is married to another person at that time, this marriage is deemed null and void. A subsequent divorce will not validate a marriage that occurred resulting in bigamy.

However the INS has found a number of cases where the applicant was unaware of the bigamy. In these cases the INS will allow the person to self-petition if they can demonstrate that:

1. s/he married a USC or LPR who s/he believed was free to enter into marriage;

2. a marriage ceremony was actually performed; and

3. the requirements for the establishment of a bona fide marriage were otherwise met

In addition the applicant must also satisfy all other eligibility requirements required to file self-petition as an intended spouse required under the INA exception for battered spouses and children.

October 2002 Priority Dates
1	01/Mar/1999	EB1	C
2A	15/Jul/1997	EB2	C
2B	01/Feb/1994	EB3	C
3	08/Oct/1996	Other	C
4	01/Oct/1990	4	C
		5	C