Introduction

Obtaining permanent resident status as the relative [see category] of a U.S. citizen or lawful permanent resident is effectively a two-step process. First, the U.S. citizen or lawful permanent resident must file an immigrant visa petition for his or her relative. If the petition is approved, the beneficiary must either apply for a visa abroad [see category] or apply for adjustment of immigration status [see category] from within the United States. Note that this is a very simplified explanation that skips over other important components of immigrant visa petitions. In certain cases, the petitioner may die after the Form I-130 has been approved but before the beneficiary of the approved Form I-130 obtains an immigrant visa or adjusts his or her immigration status. Below, we examine a discretionary form of relief called “humanitarian reinstatement” that is available to certain beneficiaries of approved Form I-130s whose petitioning relative dies prior to the beneficiary obtaining permanent resident status on the basis of the approved petition.

We will rely principally on the United States Citizenship and Immigration Service’s (“USCIS”) guide to Humanitarian Reinstatement (June 7, 2013 version) [link].

What is Humanitarian Reinstatement?

When a Form I-130 petitioner dies after the approval of the Form I-130 but before the beneficiary of the Form I-130 obtains permanent resident status, the beneficiary can no longer adjust status or obtain a visa on the basis of the approved Form I-130. However, the USCIS may “reinstate” the Form I-130, making it valid for purpose of adjustment notwithstanding the death of the petitioner.

Eligibility for Humanitarian Reinstatement

There are two prerequisites to eligibility for humanitarian reinstatement:

The applicant must be the principal beneficiary of an approved Form I-130; and

The applicant’s petitioning relative must have died.

Note that we italicized two terms in the first point for emphasis.

Principal Form I-130 Beneficiaries Only: Only the principal beneficiary of the Form I-130 can request humanitarian reinstatement. For example, in the case where a deceased U.S. citizen petitioned for his alien spouse and the alien spouse’s child was included as a derivative on the Form I-130, the spouse would be able to request humanitarian reinstatement but the child would not. However, the USCIS explains that if the principal’s humanitarian reinstatement request is approved, derivative beneficiaries may be able to benefit from relief.

Only Applies to Approved Forms I-130: Humanitarian reinstatement is not available in cases where the petitioning relative dies while the Form I-130 is pending. Relief under section 204(l) of the Immigration and Nationality Act (“INA”) covers limited cases were the petitioning relative dies while the Form I-130 is pending [see USCIS guide].

Public Charge Considerations

The USCIS explains that “[m]ost immediate relatives and family-based preference immigrants are required to have Form I-864, Affidavit of Support Under Section 213A of the INA.” The purpose of the affidavit of support is to show that the beneficiary of a family-sponsored petition will not become a public charge [see article]. The Service notes that there are certain cases wherein the beneficiary’s work history or other factors may render the Form I-864 unnecessary in accordance with the regulations at 8 C.F.R. 213a.2(a)(2)(ii).

In cases where the Form I-864 is required, the death of the petitioner does not ameliorate the requirement. Thus, where the deceased petitioner was the Form I-864 sponsor, the beneficiary would require “a new Form I-864 from a substitute sponsor” in order to be considered for humanitarian reinstatement. The USCIS lists the requirements for a substitute Form I-864 sponsor in cases where one would be required. The substitute sponsor must be:

A U.S. citizen, national [see article], or lawful permanent resident;

At least 18 years old; and

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.

In short, the substitute sponsor must be an adult U.S. citizen or permanent resident with a qualifying familial relationship to the beneficiary requesting humanitarian reinstatement.

Humanitarian Reinstatement is a Discretionary Form of Relief

Humanitarian reinstatement is a discretionary form of relief. This means that there is no circumstance in which the USCIS is required to grant humanitarian statement. Instead, it evaluates each case individually and determines whether humanitarian reinstatement is warranted in a particular case.

Assuming that the applicant meets the basic eligibility requirements (detailed in the previous section), the USCIS will weigh the positive factors supporting a grant in a particular case against the negative factors opposing a grant. The USCIS may grant humanitarian reinstatement in individual cases wherein it determines that the factors supporting granting relief outweigh the negative factors supporting the denial of relief. For this reason, it is important for individuals requesting humanitarian relief to put together a detailed case highlighting positive factors supporting their relief requests.

Applying for Humanitarian Reinstatement

In most cases, an individual filing a request with the USCIS uses a specific USCIS form for the purpose. However, “[t]here is no form or fee to ask for humanitarian reinstatement.” Instead, the applicant must send a written request to the USCIS along with supporting evidence. This request must be sent to the USCIS office that originally approved the Form I-130.

The USCIS lists all of the evidence that must accompany the written humanitarian statement request:

  • The beneficiary’s name and the deceased petitioner’s name;
  • The receipt number of the petitioner (this is found on the receipt notice);
  • The beneficiary’s Alien Registration Number (A-Number), if available;
  • The deceased petitioner’s A-Number, if available (this would be applicable in cases where the petitioner was a lawful permanent resident);
  • The deceased petitioner’s death certificate (a certified translation is required if the death certificate is not in English);
  • A Form I-864 from the beneficiary’s substitute sponsor (if needed); and
  • Evidence that a favorable exercise of discretion is warranted. This evidence may include, but is not limited to:
  • The impact that granting the request would have on family living in the United States (especially U.S. citizens, lawful permanent residents, or others lawfully present);
  • Advanced age or health concerns of the beneficiary or any following-to-join family members of the beneficiary;
  • Lengthy period of lawful residence in the United States;
  • Beneficiary’s ties (or lack thereof) to his or her home country;
  • Other factors, including lengthy government processing delays; and
  • Any other factors that may support the USCIS’s decision to grant the request in the exercise of its discretion.

Conclusion

Provided that an individual meets the threshold eligibility requirements for humanitarian reinstatement, the actual request presents a low barrier to entry on account of the evidentiary requirements being unburdensome and there being no application fee. With that being said, petition beneficiaries in cases where the petitioning relative is deceased are well advised to consult with an experienced immigration attorney. Firstly, an attorney can examine the particular case and determine which forms of relief, including humanitarian reinstatement, may be available. Secondly, if the individual and attorney determine that requesting humanitarian reinstatement is the best course of action, the attorney can assist the applicant in satisfying the requirements (notably the substitute sponsor’s affidavit of support, if needed) and preparing a compelling case supporting the USCIS’s positive exercise of discretion.