CASE: Adjustment of Status / 245i / Public Law 111-83 / INA Section 204(l) Amendment Issue (less stringent humanitarian reinstatement process)
CLIENT: Antiguan
LOCATION: Georgia
Our Antiguan client came to the U.S. on a F-1 student visa in 1996 and later changed to H-1B. His employer did not renew his H-1B status, so he fell out of his status.
Prior to retaining our firm, his father filed an I-130 petition for him back in March 1998 (F2B Classification). The I-130 petition was approved by the INS in 1998. However, he could not apply for his green card until his priority date became current. Unfortunately, his father (I-130 Petitioner) passed away before he was eligible to apply for his green card.
Before 2009, through the more stringent humanitarian reinstatement process, the INS (USCIS now) allowed a 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 did 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 contacted our office in 2013 and retained our office for his adjustment of status. Our client’s US citizen brother was willing to become a substitute sponsor and he met the physical presence requirement. Once retained, our office filed an I-485 adjustment of status application along with form I-485A and other supporting documents. It was filed on July 24, 2013.
On April 10, 2014, our client appeared at the Atlanta USCIS office for his adjustment interview. Attorney Yu accompanied him at the interview, and the interview went pretty smoothly. Attorney Yu explained the new regulations and explained to them that the old humanitarian reinstatement standards were not needed anymore. Eventually, our client’s adjustment of status application was approved by the USCIS on August 14, 2014. After a long wait, our client is finally a green card holder.