When death strikes suddenly, as it did to the passengers heading for the Dominican Republic on the American Airline flight, their noncitizen relatives have had to deal with a lot of immigration issues. Although this article was written as an advisory for this disaster, it is applicable to similar situations.

Continuing a Family Petition after the Death of the Sponsor

Section 201(b)(2)(A)(i) of the Immigration and Nationality Act (INA) provides that an alien who was the spouse of a US citizen for at least two years before the citizen died shall remain eligible for immigrant status as an immediate relative. This also applies to the children of the alien.

This provision, unfortunately, remains inapplicable to other relatives of US citizens or to relatives of green card holders.

Section 205 of the INA authorizes the Attorney General to revoke the approval of any family petition under the immediate relative or preference categories for good or sufficient cause. Under INS' implementing regulation, 8 C.F.R. § 204.1(a)(3)(i), approval of a visa petition on behalf of a relative of the US citizen or a permanent resident is automatically revoked under several circumstances, including death. In the case of death, the petition is revoked upon:

• the death of the petition or beneficiary, or
• the death of the petitioner unless the Attorney General in his discretion determines that for humanitarian reasons revocation would be inappropriate

Even if a petition could be reinstated, the requirement for an affidavit of support pursuant to Section 213A of the INA could pose obstacles. INA Section 213A requires all persons who wish to sponsor immigrants to the United States to execute an affidavit of support on their behalf. Thus, if the petitioner died without signing an affidavit of support, the humanitarian exception provision becomes meaningless.

Furthermore, the petition for alien relative (Form I-130) must be approved prior to the sponsor's death and before the humanitarian exception may be invoked. In immediate relative situations, the Form I-130 and application for adjustment of status (Form I-485) are submitted simultaneously with the INS. Both applications are adjudicated only at the interview. If the petitioner dies prior to the interview, the humanitarian exception may not apply. However, Section 201(b)(2)(A)(i) would apply if he or she was the spouse of a US citizen for at least two years before the death.

The USA Patriot Act of 2001 contains very generous provisions preserve immigration benefits of victims and their family members. Unfortunately, these provision only apply to those who were directly affected by the event of September 11. For others, such as the noncitizen relatives of the crash victims, the above-mentioned limited exceptions apply. It is hoped that the INS will apply its discretion compassionately and allow those who cannot take advantage of these exceptions to remain in the United States through a remedy known as deferred action.

Fear of Coming Forward

Many undocumented relatives are fearful of coming forward to seek help because of their immigration status. A person in an undocumented status is at risk of being put into removal proceedings. However, the INS is generally sympathetic in times of disasters. In the aftermath of the September 11 event, the INS issued a statement encouraging undocumented aliens who were relatives of victims of that disaster to come forward without any fear. The INS has yet to issue a similar statement on behalf of the American Airlines crash victims.

Travelling to the Dominican Republic

Many relatives in undocumented status also wish to travel to the Dominican Republic to bury their loved ones and take care of other matters. It is not advisable for undocumented persons to travel outside the United States, as it would be difficult to get back in. Section 212(a)(9)(B) of the INA imposed a 3 and 10 year bars to reentry for persons who have overstayed certain visas. Even if the 3 or 10 year bars do not apply to an individual's situation, it will be difficult to obtain a visa to reenter the United States.

However, if a person is waiting for a residency application to get approved, such an application for adjustment of status, and does not face the three year or ten year bar, then he or she can apply for special travel permission known as "advance parole." INS New York is expediting advance parole requests for crash victims' family members.