Continuing the Immigration Journey, Part 1: Humanitarian Reinstatement of the I-130 Petition after the Petitioner’s Passing

HomeNews & EventsContinuing the Immigration Journey, Part 1: Humanitarian Reinstatement of the I-130 Petition after the Petitioner’s Passing

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Continuing the Immigration Journey, Part 1: Humanitarian Reinstatement of the I-130 Petition after the Petitioner’s Passing

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Losing a loved one is an experience that profoundly touches the lives of those left behind. The toll it takes is immeasurable for anyone, but the challenges become even more complex when an individual or family’s immigration journey is intertwined with the departed. For instance, typically when the sponsor (petitioner) for an immigration case dies, any petition they filed on behalf of their noncitizen relative (beneficiary) is revoked if already approved or canceled if still pending at the time of the petitioner’s death. However, there is a legal mechanism known as humanitarian reinstatement that can offer a lifeline to those confronting the daunting reality of continuing their immigration journey after the death of their sponsor, ensuring that the dreams and aspirations of immigrant families endure beyond the boundaries of life and death.

What is humanitarian reinstatement and why is it needed?

Generally, in family-based immigration cases in the United States, an approved Form I-130, Petition for Alien Relative (“I-130” or “I-130 petition”), is automatically revoked if the person who filed the petition (petitioner) dies before the intending immigrant (beneficiary) obtains their legal permanent residence. This applies to both adjustment of status in the United States and consular processing abroad. However, there are three possible remedies that allow certain beneficiaries and family members to continue their immigration journey even after the petitioner or principal applicant has passed away:

  • Humanitarian reinstatement of an approved I-130 petition under section 205.1(a)(3)(i)(C)(2) of the Code of Federal Regulations (“CFR”);
  • survivor benefits for widow(er)s of U.S. citizens under section 201(b)(2)(A)(i) of the Immigration and Nationality Act (“INA” or “Act”); and
  • other benefits for certain surviving relatives under section 204(l) of the INA.

This article focuses on the first option: humanitarian reinstatement – a mechanism under federal regulations that grants U.S. Citizenship and Immigration Services (“USCIS”) the discretion to reinstate the approval of a family-based immigrant visa petition upon the petitioner’s death for “humanitarian reasons.” Humanitarian reinstatement is a limited discretionary relief and is sometimes the sole avenue available to surviving relatives who had an approved I-130 but do not qualify for relief under INA § 201(b)(2)(A)(i) or INA § 204(l) (which we plan to cover in subsequent publications, so stay tuned).

Who is eligible for humanitarian reinstatement?

To request humanitarian reinstatement, you must be the principal beneficiary of an approved I-130, and your petitioner relative must have passed away. You must also have a qualifying family member who can “step in” as the “substitute sponsor.” The substitute sponsor must be a U.S. citizen, national, or lawful permanent resident, 18 years or older, and must be the principal 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.

Notably, humanitarian reinstatement cannot be granted if the petitioner passed away while the petition was pending, and derivative beneficiaries cannot request humanitarian reinstatement. However, if USCIS approves the principal beneficiary’s request, eligible derivative beneficiaries may also benefit from relief by accompanying or following to join the principal beneficiary. Additionally, there are other mechanisms available for derivative beneficiaries of certain petitions and applications, which will be discussed in the coming months.

How does someone request humanitarian reinstatement?

To request humanitarian reinstatement, you must submit a written request, with supporting evidence, to the USCIS office that originally approved the I-130 petition in your case. This request does not require a specific form or a filing fee, and there is no fixed time frame in which the request must be submitted after the petitioner’s passing (although sooner is generally better). However, certain information and documentation should be included, such as the I-130 approval notice, the petitioner’s death certificate, a Form I-864 (Affidavit of Support) and proof of the substitute sponsor’s relationship and lawful status in the U.S., and evidence justifying a favorable exercise of discretion (in other words, explaining why the positive factors outweigh the negative factors and why USCIS should reinstate the petition in your case).

USCIS considers various factors in these requests, including but not limited to the impact on family living in the United States (especially U.S. citizens, lawful permanent residents, or others lawfully present); the advanced age or health concerns of the beneficiary or any following-to-join family members of the beneficiary; lawful residence in the United States for a lengthy period; ties (or lack thereof) to your home country; other factors, such as unusually lengthy government processing delays; and any other factors that weigh in favor of reinstatement. Since each case is unique and it is your job to convince USCIS why they should approve your request, it is highly recommended to consult with an experienced immigration attorney to prepare and submit your request for humanitarian reinstatement.

What happens after the request is made, and how long does it take?

Unlike most other filings with USCIS, you will not receive a receipt notice or any confirmation from USCIS that your request was received. Therefore, it is crucial to send your request with tracking and keep copies of your filing and proof of delivery to USCIS in case you need to follow up with USCIS later. Additionally, there are no standard or published processing times for these requests, and it often takes several months, and sometimes even years, to get a response or decision from USCIS.

Once a decision is made, USCIS will either issue a notice or letter stating that the approval is reinstated and reaffirmed or that the petition remains revoked. If the request is approved, USCIS will forward the reinstated petition to the beneficiary’s file in adjustment cases or to the National Visa Center (“NVC”) in consular processing cases for further processing. If the request is denied, the decision cannot be appealed, but a motion to reconsider can be filed (with a filing fee) or a new request can be submitted.

I think this may apply to me or someone I know. What should I do next?

In the complex landscape of immigration, the passing of a petitioner can cast a shadow of uncertainty and despair over the dreams of immigrant families. However, as we’ve explored, there exists at least one legal remedy – humanitarian reinstatement – that serves as a beacon of hope and allows the continuation of the immigration journey after the loss of a petitioner.

While the path may be challenging and the process demanding, the existence of humanitarian reinstatement underscores the resilience of individuals and families who pursue a better life in the United States. For those who find themselves in such circumstances, seeking guidance and assistance from an experienced immigration attorney can be a crucial step toward navigating this intricate legal terrain.

This information is intended for educational purposes only. If you or someone you know is facing the complexities of humanitarian reinstatement or any immigration-related challenges, we strongly recommend reaching out to an experienced immigration attorney, who can provide the guidance and support needed to navigate these legal processes successfully. Your dreams of building a life in the United States, even in the face of adversity, can be kept alive through the legal avenues available.

Remember, your immigration journey doesn’t have to end with the passing of a loved one. With the right legal assistance, you can continue your path toward legal permanent residence and, eventually, citizenship in the United States.

On September 28, 2023, David Neal, Director of the Executive Office for Immigration Review (EOIR), the agency running the nation’s immigration courts and the Board of Immigration Appeals, published guidance…


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