Tue | Dec 6, 2022

Immigration Corner | Timing is everything

Published:Monday | July 10, 2017 | 12:00 AM

Dear Mrs Walker-Huntington,

My sister's petition was closed by the Department of Homeland Security due to our mom's passing almost four years ago. The petition was filed two years prior to mom's passing. Is there anything that can be done? It just seems like a waste of time and money especially considering all the time and money that was involved.

- RD

Dear RD,

When a petitioner dies, any pending petition dies with them. However, if the petition was approved before the petitioner dies, US Citizenship & Immigration (USCIS) allows for a substitute sponsor and a humanitarian request.

As most non-immediate relative petitions (e.g. adult daughter) take years before a visa becomes available, petitions are approved and assigned a priority date. The beneficiary then has to sit and wait until their priority date becomes current. If the petitioner dies after the petition is approved and before the visa interview, the petition can continue.

If the petition is at the National Visa Center, they will return the file to USCIS for the substitute sponsor and the humanitarian consideration. The substitute sponsor must be a US citizen or lawful permanent resident, and has to be one of a select group of persons. The substitute sponsor must be: the spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18years of age), son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild, or legal guardian of the beneficiary.

If USCIS approves the humanitarian request and the substitute sponsor, they will return the file to the National Visa Center to resume the processing of the visa application.

In your specific case, you need to see if your sister's petition was approved before your mother's passing. Also, you indicated that it was DHS that closed the file; I am not sure what was done before the file was closed and whether your sister was eligible to continue with a substitute sponsor. Here, timing is everything.

- Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal, international and personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walkerhuntington.com