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When the petitioner dies after the petition has been approved, what to do?

Humanitarian Reinstatement

 By Michael Phulwani, Esq. and Dev B. Viswanath, Esq.

 If an individual applies for a green card through a relative who is a Lawful Permanent Resident or US Citizen, but the Petitioner passed away before the application process is complete, the individual may still receive their green card, in some circumstances. The principal beneficiary may request humanitarian reinstatement of a petition only if the petition had already been approved before the death of the petitioner. Humanitarian reinstatement is a discretionary form of relief which means the positive factors for granting the petition must be significant.

There is no form or fee required when asking for humanitarian reinstatement. The primary beneficiary must make a written request with supporting evidence to the USCIS office that had originally approved the petition. If the beneficiary had already properly filed an application for adjustment of status with USCIS then the request for reinstatement should be sent to the USCIS office that has jurisdiction over the adjustment application. The request would normally include the following documents (but this is at a minimum):

  • The name of the primary beneficiary and the deceased petitioner’s name;
  • The receipt number of the petition;
  • Death certificate of the deceased petitioner;
  • A substitute sponsor;
  • Proof of the substitute sponsor’s relationship to the beneficiary; and
  • Any evidence showing that a favorable exercise of discretion should be given to the beneficiary.

If the beneficiary was required to have Form I-864 and the petitioner dies, the beneficiary must either have a new Form I-864 from a substitute sponsor or Form I-864W, for an exemption. The substitute sponsor must meet the following requirements:

  • A U.S. citizen, national, or lawful permanent resident;
  • 18 years old or older; and
  • Be the beneficiary’s spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.

When deciding on whether or not to grant request humanitarian reinstatement USCIS considers many factors such as:

  • If the beneficiary is elderly or in poor health;
  • How long the beneficiary had resided in the U.S.;
  • If the beneficiary has strong ties to their home country;
  • The impact of revocation on the family living in the U.S., especially on the family who are U.S. citizens or lawful permanent residents or other relatives lawfully living in the U.S.; and
  • If the beneficiary had waited an unusually long time for the case to be processed and the delay is because of the government.

If the humanitarian reinstatement request is granted USCIS will notify the beneficiary and send its decision to either the Department of State or to the USCIS officer processing the beneficiary’s adjustment case, if they are outside the U.S. If the humanitarian reinstatement request is not granted USCIS will notify the beneficiary in writing. USCIS’s decision can not be appealed and therefore if denied the beneficiary will need to find a different way of getting an immigrant visa or green card. But, it also does not preclude the beneficiary from filing for reinstatement again, if more equities are discovered or if they have new legal counsel who may have the ability to present a stronger case than previously submitted.  This is a great form of relief for people and families when they have already suffered the loss of a loved one.

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H-3 Nonimmigrant Trainee or Special Education Exchange Visitor Visa

By Michael Phulwani & Dev B. Viswanath

An H-3 visa is a work visa for foreign individuals who would like to come to the U.S. for a specific period of time to receive training or special education.  If an individual comes to the U.S. to receive training they must enroll in a training program which is not available to them in their home country. Some areas of training can be in the fields of agriculture, commerce, communication, finance, or transportation. The individual cannot receive a full academic degree while in the training program or receive any medical training. An individual’s purpose for attending a training program should be to obtain advanced skills which are not available in their home country and then go back home and apply them. The training should also help the individual advance in their career. If an individual comes to the U.S. to receive special education  training, they must enroll in an academic or hands-on program in order to advance their understanding of children with special needs. Special needs may include physical needs, mental challenges, or emotional challenges.

In order to qualify for an H-3 visa a foreign individual must receive an invitation from the training organization to attend their program. The individual should provide USCIS with a letter describing in detail the training organization and the program they will be enrolled in. The letter should include information such as:

  • The syllabus of the program;
  • The schedule of when lectures will be held, when, and if necessary, how many hours of practical work will take place;
  • What benefits the organization receives by providing that specific type of training;
  • How the applicant will be benefited by the program; and/or
  • Why this type of program is not available in the individual’s foreign home.

Similar to other H visas, the H-3 visa cannot be applied for by a foreign national themselves, the organization where the training will be held needs to petition for the foreign national to be granted an H-3 visa. The organization is required to send a petition to USCIS with a description of the training or special education program, proof that such program is offered at the organization, and supporting documents as to why the applicant should be granted an H-3 visa. Supporting documents can include information about an applicant’s educational background, employment history, and if they had received any training in the past. An applicant who would like to receive special education training must show that they are almost done with a baccalaureate or higher degree program in special education, or has already received a baccalaureate or higher degree program in special education, or have a lot of prior training and experience teaching children with physical, mental, or emotional disabilities. A form I-129 must also be filled out and included in an H-3 visa petition.

An H-3 visa holder is not allowed to work in the U.S, the only type of work that is allowed is practical work that is part of the course work of the training program. There are not many H-3 special education visas granted yearly, only 50 H-3 special education visas may be granted in a fiscal year. An H-3 visa holder in a training program may be allowed to stay in the U.S. for up to 2 years and an H-3 visa holder in a special education program may be allowed to stay in the U.S for up to 18 months. Spouses and children under the age of 21 may come with an H-3 visa holder to the U.S. as an H-4 nonimmigrant. Spouses and children are not allowed to work while under the H-4 visa status but they are allowed to attend school.

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