CASE: Adjustment of Status / Public Law 111-83 / INA Section 204(l) Amendment Issue (less stringent humanitarian reinstatement process) / 245(i)
CLIENT: Filipina
LOCATION: Chicago, IL
Our Filipina client came to the U.S. on a B-2 visitor’s visa in May 1993 and overstayed her status
Prior to retaining our firm, her sister filed an I-130 petition for her back in 1990. As some of you know, priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The wait is more than 20 years!
The I-130 petition was approved by the INS in 1990. However, she could not apply for her green card until her priority date became current. Therefore, she had to wait for more than 20 years in order to even apply for her green card. Unfortunately, her sister (I-130 Petitioner) passed away before she was eligible to apply for her green card.
Before 2009, through the more stringent humanitarian reinstatement process, the INS (USCIS now) allowed the foreign national’s spouse, parent, mother-in-law, father-in-law, sibling, child who is at least 18 years of age, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian to become a substitute sponsor if a family-based visa petitioner dies following the approval of the I-130 petition but before the foreign national obtains permanent residence. Even if the I-130 had been approved, it would be deemed revoked once the petitioner dies. At that time, reinstatement of the revoked petition was not automatic despite a substitute sponsor being available. And the process was still a matter of discretion. The INS had to determine whether “humanitarian reinstatement” was appropriate based on the individual facts of the case. Thus, the applicant must demonstrate exceptional hardship and request for humanitarian reinstatement if his or her petitioner is deceased before the petition gets reinstated.
Public Law 111-83 (2009) eased this burden for beneficiaries whose petitioners died prior to their adjustment of status application. The new regulation does not require “humanitarian reinstatement” anymore. Therefore, as long as they meet certain qualifications such as having physical presence in the U.S. at the time of the petitioner’s death and also having a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible to adjust.
Our client’s US citizen brother-in-law (husband of deceased petitioner) was willing to become a substitute sponsor and she met the physical presence requirement. On October 19, 2010, our office filed an I-485 adjustment of status application under the 245(i) category. We of course cited PL 111-83. On February 3, 2011, our client appeared at the Chicago CIS office for her adjustment interview. Attorney JP Sarmiento accompanied her at the interview. Attorney Sarmiento also explained the new regulations and explained to them that the old humanitarian reinstatement standards were not needed anymore.
However, the F4 priority date for the Philippines backlogged. Our client had to wait until the priority date became current. In October 2013, her priority date became current. Eventually, our client’s adjustment application was approved by the USCIS on October 7. 2013. After a long wait, our client is finally a green card holder.