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 an eligible substitute sponsor. Otherwise, you must qualify for an exemption from the Affidavit of Support requirement.
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:
1. Full name of the deceased petitioner and the principal beneficiary
2. Any A-numbers of the deceased petitioner and the principal beneficiary
3. The receipt number for the approved petition
4. The petitioner’s death certificate, plus certified English translation if document is in a foreign language
5. Form I-864, Affidavit of Support, from an eligible substitute sponsor , or evidence of exemption for Affidavit of Support
The substitute sponsor must be:
A U.S. citizen, national, or lawful permanent resident;
At least 18 years old; AND
Your 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.
You may be exempt from filing a Form I-864 if:
You have earned or can receive credit for 40 quarters (credits)/10 years of work in the United States (as defined by the Social Security Act), regardless of the immigrant category. (Check your SSA earning statements. Do not count any quarters during which you received a means-tested public benefit.); OR
You are under 18 years old, unmarried, immigrating as the child of a U.S. citizen, are not likely to become a public charge, and will automatically become a U.S. citizen pursuant to INA section 320 upon your admission to the United States.
6. 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
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.
Photo by: AndisBilderwerkstatt