Humanitarian Reinstatement Following Death of Petitioning Relative01 Jun 2022
In most circumstances, the U.S. Citizenship and Immigration Services (USCIS) is required to revoke an approved family-based petition for alien relative (form I-130) if the petitioning relative dies before the beneficiary is issued an immigrant visa. However, under certain circumstances, a humanitarian reinstatement request is available as a form of discretionary relief for the principal beneficiary and dependent family members.
Eligibility for Humanitarian Reinstatement
There is no USCIS form to submit a humanitarian reinstatement request. Rather, to be considered for humanitarian reinstatement, the beneficiary or visa applicant needs to submit a written request to the USCIS office that approved the original I-130 petition, accompanied by evidence that the individual meets the below listed basic eligibility requirements:
- The USCIS must have approved the I-130 petition before the petitioner’s death.
- In cases where an affidavit of support (form I-864) is required, a qualifying substitute sponsor must submit a new form I-864 to show sufficient annual income to support the beneficiary.
- The substitute sponsor must be a U.S. citizen or lawful permanent resident and must be at least 18 years old and have a familial relationship with the principal beneficiary. This can include a spouse, parent, grandparent, legal guardian, child, grandchild, adult son or daughter, or any in-law (including mother-in-law, father-in-law, son-in-law, daughter-in-law, sister-in-law, or brother-in-law).
- If the substitute sponsor’s income is not sufficient to support the beneficiary, a joint sponsor can be included to meet that financial requirement.
Note that humanitarian reinstatement should not be confused with the immigration protection provided under 204(l) of the Immigration and Nationality Act (INA). More details on 204(l) benefits are available in the MurthyDotCom NewsBrief, Immigration Benefits After Death of Qualifying Relative (27.Aug.2020).
Discretionary Approval for Humanitarian Reinstatement
If the above requirements are met, the USCIS will then take into consideration several other factors and weigh the pros and cons of each, before deciding on the merits of a reinstatement request. Therefore, in addition to meeting the above requirements, the applicant typically should include documentation showing that a favorable exercise of discretion is warranted.
Discretionary Factors for USCIS to Consider
As noted above, this benefit is discretionary, and there is no set statutory list of factors that the USCIS must consider. However, some of the favorable factors generally taken into consideration are outlined below:
- Disruption of a family unit and its impact on the beneficiary’s 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
- Whether the beneficiary previously lawfully resided in the United States for a lengthy period
- The beneficiary’s lack of ties to his or her home country
- Unusually lengthy government processing delays
- Any other factors in favor of reinstatement, with supporting documentation
Humanitarian reinstatement provides a possible avenue for immigration relief following the death of the petitioning family member. While humanitarian reinstatement is a limited discretionary form of relief, and processing times can be unpredictable, it can help salvage an immigration case following the tragic death of the petitioning family member.
Copyright © 2022, MURTHY LAW FIRM. All Rights Reserved