CASE: Adjustment of Status / Public Law 111-83 / INA Section 204(l) Amendment Issue (less stringent humanitarian reinstatement process)
LOCATION: Chicago, IL / Los Angeles, CA
Our Filipina client came to the U.S. on a B-2 visitor’s visa in 2001 and overstayed her status. Currently, she resides in Los Angeles, California.
Prior to retaining our firm, her father filed an I-130 petition for her back in 1987. As some of you know, priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The I-130 petition was approved by the INS in 1987. However, she could not apply for her green card until her priority date became current. Therefore, she had to wait for more than 15 years in order to even apply for her green card.
Unfortunately, her father (I-130 Petitioner) passed away before she was eligible to apply for her green card. She was placed in removal proceedings after the DHS found out about her overstay. She was under the impression that nothing could be done since her father (the I-130) petitioner died.
We explained that we can terminate removal proceedings and we can help her adjust status with a substitute sponsor. Our office was retained in November 2010, and we later filed her I-485 Adjustment of Status application with a substitute sponsor (her US Citizen sister) and a Request to Join in a Motion to Terminate with the Department of Homeland Security in Los Angeles.
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 sister was willing to become a substitute sponsor and she met the physical presence requirement. On January 5, 2011, our office filed a request to join in a Motion to Terminate with the Los Angeles DHS. Our client’s master calendar hearing was scheduled on February 2, 2011 at the Los Angeles Immigration Court. Prior to her hearing, the DHS counsel in Los Angeles agreed to terminate our client’s proceedings.
With this joint motion, Attorney Sung Hee (Glen) Yu from our office represented our client at the Los Angeles Immigration Court. Attorney Yu explained the new regulation and how this law applied to our client’s situation before the Immigration Judge. The Immigration Judge granted termination without prejudice and her case was transferred USCIS Chicago Field Office for adjudication of her I-485 application.
On April 5, 2011, our client appeared at Chicago CIS office for her adjustment interview. Attorney Yu accompanied her at the interview, and the interview went pretty smoothly. Attorney Yu explained the new regulations and explained them that the old humanitarian reinstatement standards were not needed anymore.
However, on October 3, 2011, the USCIS issued a Request for Evidence (RFE) for our client. The CIS argued that our client was not able to show humanitarian reasons for reinstatement.
It seemed though that the RFE did not take into account PL 111-83 and the new 2009 law. Under the new law, the Petition survives the death of the Petitioner also in categories of beneficiaries as long as they were residing in the U.S. on the date the Petitioner passed away and continue to reside in the U.S., including married sons and daughters of citizens and green card holders. A substitute sponsor who is a qualifying relative, such a U.S. Citizen sibling, shall still be needed, but the humanitarian factors are not.
Since our client’s case clearly fell under the amendments for INA Section 204(l), our office filed a Response to RFE on October 13, 2011 including a cover brief and 14 exhibits. We attached the law itself and highlighted the relevant parts. Eventually, our client’s adjustment application was approved by the USCIS on February 15, 2012. After a long wait, our client is finally a green card holder.
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For other family immigration adjustment of status success stories with deceased petitioner and substitution issues, please click here.
For other success stories, please click here.
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