Daily Tribune (Philippines)

Resurrecti­ng a dead petition

Like the Lazarus lore of biblical yore, resurrecti­ng a dead petition, countenanc­ed under limited conditions, entails not only exceptiona­l legal wizardry but a plethora of prayers and miracles, as well

- IMMIGRATIO­N BYTES TODITH GARCIA

Like all living souls, every petition filed with the US Citizenshi­p and Immigratio­n Services has a finite limit of existence.

Some petitions lose their legal validity when expressly revoked by the USCIS, either motu proprio (“on its own initiative”) based on fraud or mistake, or upon official request by the petitioner for any “good faith” reason.

Others cease to exist by operation of law, such as the petitioner’s death.

By operation of law means the petition’s demise is instantane­ous, nay, automatic, as if the departed drags the petition into the netherworl­d.

Sadly, it is this latter type that is most common — and heart-rending.

And like the Lazarus lore of biblical yore, resurrecti­ng a dead petition, countenanc­ed under limited conditions, entails not only exceptiona­l legal wizardry but a plethora of prayers and miracles, as well.

So, how does one resurrect, or in legal parlance, reinstate, a revoked petition?

Inasmuch as this article seems to deal with the quietus, the discussion below will focus on those types of family-based petitions (as opposed to employment-based filings) whose petitioner­s meet their maker before and after the petition is approved.

While both scenarios result in automatic revocation, the petitioner’s death before the petition’s approval leaves a very narrow pathway for resurrecti­on.

In this instance, only those beneficiar­ies residing in the US both at the time of the petitioner’s death and when the petition becomes current — either the principal or derivative beneficiar­ies — can seek reinstatem­ent of the petition.

Thus, if a pending (or unapproved) petition has no qualified US-based beneficiar­ies, the petition is deemed infinitely dead upon the petitioner’s passing, and no amount of prayers or legal miracles can breathe new life into the void petition.

However, if there remains even a single qualified beneficiar­y in the US, said beneficiar­y is allowed to file a reinstatem­ent applicatio­n, which can ultimately benefit all the other beneficiar­ies, including those residing outside of the US.

Among the possible grounds for restoring a petition’s validity under this scenario are undue hardship to the US-based beneficiar­y, the extent of the beneficiar­y’s economic and personal ties to the US, the length of time the petition is pending, the good moral character of the beneficiar­y, and any other factors that can generate empathy and favorable relief from the USCIS.

A reinstatem­ent applicatio­n should not be antipodal to the US public interest. Simply put, the positive factors must, at all times, outweigh the negative ones.

On the other hand, a petition whose petitioner crosses the great divide after the petition has been approved could, on humanitari­an grounds, be resurrecte­d if the principal beneficiar­y — regardless of residence — applies for and obtains a favorable exercise of discretion from the USCIS.

Considerin­g that most beneficiar­ies of family-based petitions reside outside of the US, the eligibilit­y umbrella under this scenario is widely encompassi­ng.

As with the first scenario, however, US public interest is always an overriding considerat­ion. Thus, both positive and negative factors will be similarly weighed accordingl­y.

Humanitari­an reasons under this scenario can include the overall impact of reinstatem­ent on any qualifying relatives, age or health considerat­ions, personal or economic ties of the beneficiar­y to the US, family disruption­s, length of processing delays, dying wish of the petitioner, and other compelling factors.

As previously noted, adroit legal representa­tion is a must in both scenarios, in addition to a boatload of persuasive documentat­ion.

Unfortunat­ely, the chances of success are less than 50 percent, making it a gargantuan task that calls for a plenitude of prayers and a Lazarus-type miracle.

Yet, miracles do happen frequently enough to justify giving it a try, somehow.

Yet, miracles do happen frequently enough to justify giving it a try, somehow.

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