Category Archives: humanitarian relief

Humanitarian Reinstatement Allows Certain Principal Beneficiaries to Become Permanent Residents Even When Petitioner Has Died

U.S. federal regulations require the approval of a Form I-130, family-based immigrant petition to be revoked when the petitioner dies. This stops the immigration process if the beneficiary has yet to obtain permanent resident status on the date of the petitioner’s death. But an exception under 8 C.F.R 205.1(a)(3)(i)(C) allows USCIS to, as a matter of discretion, reinstate the approval if it determines that a revocation is inappropriate due to humanitarian reasons.

Who is Eligible for Humanitarian Reinstatement?

Humanitarian reinstatement is only available to the principal beneficiary of an approved petition. It is not a remedy for persons whose petitions are still pending or for derivatives of a principal beneficiary.

For example, a married son of a U.S. citizen petitioner in the F3, family-based category, may still immigrate to the United States if the petitioner dies before he gets his green card, as long as the I-130 petition was approved before the death. But his spouse and minor children will not benefit from humanitarian reinstatement and cannot immigrate through the deceased’s petition. Instead, the principal beneficiary will need to file petitions for his spouse and children after he becomes a permanent resident.

In family-based immigration, most applicants are required to submit a Form I-864, Affidavit of Support. Their work history or other factors can sometimes make up for the lack of a Form I-864, under the totality of the circumstances test. In either case, the petitioner’s death does not protect them from the public charge inadmissibility ground under INA 212(a)(4).

If you were required to provide a Form I-864 and the petitioner died, you need a Form I-864 from a substitute sponsor, who must be a U.S. citizen or lawful permanent resident, at least 18 years old, and your spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years old), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian. Otherwise, a Form I-864W, Request for Exemption for Intended Immigrant’s Affidavit of Support , may be submitted when appropriate.

How to Apply for Humanitarian Reinstatement

Humanitarian reinstatement may only be requested by the principal beneficiary when the petitioner of an approved I-130 petition has died.

Whether to reinstate the approval for humanitarian reasons, despite the petitioner’s death, is an entirely discretionary decision, i.e. the positive factors outweigh the negative factors. A denial by USCIS is not subject to appeal, although the agency may consider a timely motion to reopen or motion to reconsider.

There is no specific application form to submit or filing fee to pay to ask for humanitarian reinstatement. You do, however, need to send a written request with supporting documents to the USCIS office that originally approved the petition, including:

• Full name of the deceased petitioner and the principal beneficiary

• Any A-numbers of the deceased petitioner and the principal beneficiary

• The receipt number for the approved petition

• The petitioner’s death certificate, plus certified English translation if document is in a foreign language

• Form I-864, Affidavit of Support, from a substitute sponsor, or a Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, if applicable


• Evidence that a favorable exercise of discretion is warranted, such as:

  • Hardships to family living in the United States (especially U.S. citizens, lawful permanent residents, or others lawfully present);
  • Advanced age or health concerns;
  • Lawful residence in the United States for a lengthy period;
  • Ties or lack thereof to your home country;
  • Undue delays in processing the petition
  • Any other positive factors that support a reinstatement

Consult a Qualified U.S. Immigration Attorney

Humanitarian reinstatement processing can be uncertain and lengthy. There is no standardized application form to file and no receipt notice acknowledging USCIS is reviewing the request. In addition, some USCIS offices will not consider repeated requests for humanitarian reinstatement.

Consult a qualified U.S. immigration attorney to help you submit one single, complete and approvable request for humanitarian reinstatement, with all the supporting evidence.

For information on other possible remedies for surviving relatives, read our related articles:

Section 201(b)(2)(A)(i) Allows Certain Widows or Widowers of U.S. Citizens to Become Permanent Residents Even When the Citizen Has Died

Section 204(l) Allows Certain Surviving Relatives to Become Permanent Residents Even When Petitioner or Principal Beneficiary Has Died

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: AndisBilderwerkstatt

Temporary Protected Status (TPS): who can apply, when to apply, and what it provides

Foreign nationals often want to know whether a civil war or other unstable conditions in their home country allows them to seek refuge and stay lawfully in the U.S.

Those who do not qualify for asylum might be still be able to obtain another form of humanitarian relief known as Temporary Protected Status (TPS).

TPS is a temporary immigration status granted to those who are already in the U.S. during a period when they cannot return safely to their home country or when the home country cannot handle the return of its nationals.

But the Secretary of Homeland Security must first designate the country for TPS due to the following temporary conditions:

  • Ongoing armed conflict (such as civil war)
  • A natural disaster (such as earthquake, hurricane, drought)
  • An epidemic or outbreak of disease
  • Other extraordinary and temporary conditions

WHO CAN APPLY FOR TPS

To qualify for TPS, you must meet these eligibility requirements:

1. Be a national of a country on the TPS list, or a person without nationality who last habitually resided in the designated country

You may visit the TPS page of the USCIS website to see which countries are currently designated for TPS.

As of January 12, 2015, they are El Salvador, Guinea, Haiti, Honduras, Liberia, Nicaragua, Sierra Leone, Somalia, Sudan, and Syria. (NOTE: Countries can be added or taken off the list following the date of this article.)

2. Have physical presence in the U.S.

You must have been continuously physically present in the U.S. since the effective date upon which your country was designated or redesignated for TPS.

3. Have continuous residence in the U.S.

You must have continuously resided in the U.S. from the date USCIS specifies for your country, usually a few months or days prior to the effective date of TPS.

The law allows an exception to the continuous physical presence and continuous residence requirements for brief, casual and innocent trips outside the U.S. (such as a short trip to Canada or Mexico).

You may NOT be eligible to obtain TPS or keep your TPS if you:

1. Have a serious criminal record

If you have been convicted of a felony or two or more misdemeanors in the U.S., you are ineligible for TPS benefits.

2. Are found inadmissible to the U.S. and do not qualify for a waiver

Criminal convictions, immigration violations, health issues, and other grounds can make you inadmissible to the U.S. You may file a Form I-601 for a waiver of inadmissibility in certain situations, such as when you sought to obtain immigration benefits by fraud or willful misrepresentation of a material fact.

You would need to show that the waiver is for humanitarian purposes, for keeping your family together, or for the public interest. Once you receive the waiver, it will apply to subsequent re-registrations, but not to other immigration benefits.

Some grounds, such as crimes involving moral turpitude and multiple criminal convictions (except purely political offenses), cannot be waived. If you are inadmissible and do not qualify for a waiver, you may not obtain TPS.

3. Are subject to the asylum bars

Although TPS is different from asylum, USCIS treats them the same way when it comes to the mandatory bars to asylum. So if you have firmly resettled in a third country, have persecuted others in your home country, engaged in or incited terrorist activity, pose a national security threat, or have been convicted of certain serious crimes, you are not eligible for TPS.

WHEN TO APPLY FOR TPS

You must file for TPS during the open initial registration or re-registration period, or qualify for late initial filing during any extension of your country’s TPS designation.

On November 20, 2014, Liberia, Guinea, and Sierra Leone were designated for TPS for 18 months from November 21, due to the outbreak of Ebola virus disease in West Africa. The 180-day registration period began on November 21, 2014 and runs through May 20, 2015.

On January 5, 2015, the designation of Syria for TPS  was extended from April 1, 2015 through September 30, 2016, due to ongoing conflict. The re-registration period for applicants who already have TPS began on January 5, 2015, and runs through March 6, 2015. Syria was also re-designated for TPS and the 180-day initial registration period for new applicants began on January 5, 2015, and runs through July 6, 2015.

The suspension of certain restrictions for on-campus and off-campus employment for F-1 nonimmigrant students from Syria was also extended, effective through September 30, 2016.

On January 7, 2015, the designation of El Salvador for TPS was extended for an additional 18 months, from March 10, 2015, through September 9, 2016, due to a series of earthquakes in 2001. The re-registration period for applicants who already have TPS began on January 7, 2015, and runs through March 9, 2015.

If you do not submit your TPS application within the specified period , you must qualify for a late re-registration or late initial filing for USCIS to accept it.

You must file with USCIS a Form I-821, Application for Temporary Protected Status, and a Form I-765, Application for Employment Authorization (regardless of whether you want a work card). If you are inadmissible due to criminal convictions, immigration violations, or other grounds, but qualify for a waiver, you must file your Form I-601, Application for Waiver of Grounds of Inadmissibility, with your TPS application.

For more information on the application process, go to the TPS page on the USCIS website.

WHAT TPS PROVIDES (AND DOES NOT PROVIDE)

What TPS provides

TPS permits you to live and work in the U.S. and travel in and out of the U.S. for the duration of the TPS designation without fear of being placed into removal proceedings. TPS may be granted to foreign nationals who are present in the U.S. on non-immigrant visas that will expire; those who initially entered the U.S. with a non-immigrant visa and then overstayed their authorized period; and those who entered without authorization.

As long as they remain eligible, TPS holders will not be removed from the U.S. and may apply for an Employment Authorization Document (EAD) to work anywhere in the country.

What TPS does NOT provide

TPS provides only temporary protection from removal. The authorization to live and work in the U.S. is also temporary.

The length of the TPS is typically between six and 18 months (although it can be extended). A country’s TPS designation can end once it recovers from the triggering event. Once the TPS designation ends, TPS holders may be removed from the U.S. (unless they qualify for another form of status or relief).

TPS does not allow individuals living in the designated countries to come to the U.S. You must already be in the U.S. – whether lawfully or unlawfully – for the specified period.

TPS is also not a grant of lawful permanent resident status and does not make you eligible for a green card or for U.S. citizenship.

(NOTE: TPS, however, gives you more time to remain lawfully in the U.S., which could lead to your qualifying for a green card in some other way, such as marriage to a U.S. citizen, sponsorship by a U.S. employer, or an asylum grant.)

Consult an Immigration Attorney 

There are strict eligibility requirements and filing deadlines for TPS. If your application is denied, it is tough to get the decision overturned on appeal.

You should consult an experienced immigration attorney to confirm whether you qualify for TPS and to get help with the application process.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Maurizo Costanzo, El Salvador – Earthquake 2001