Asking USCIS for Humanitarian Reinstatement of I-130 Petition

When you are applying for an immigrant visa or "green card" through a U.S. relative, but the relative dies before you are able to gain final approval, you might not be able to proceed with your case. This is because the petition filed by a U.S. relative as a necessary part of the visa/green card application is revoked under certain circumstances when the U.S. relative dies. (See Can Immigrant Still Get Green Card After U.S. Petitioner/Sponsor's Death?)

If this has happened to you, and you are the principal beneficiary rather than a family member who was named on the petition and planning to accompany the main beneficiary, you have another option. You can ask U.S. Citizenship and Immigration Services (USCIS) to proceed with your case based on humanitarian reasons. (See 8 C.F.R. § 205.1(a)(3)(i)(C)(2).) This article will explain how.

How to Make the Request for Humanitarian Reinstatement of a Visa Petition

You can request humanitarian reinstatement of a petition filed with USCIS only if the agency had already approved it by the time your U.S. relative died. You should send a written request for reinstatement to the USCIS service center that approved the petition. Or, if you've already properly filed an application for adjustment of status with USCIS, you should send your request to the USCIS office with jurisdiction over the adjustment application.

In either case, you must include in your submission:

• Copy of the USCIS approval notice for the revoked petition.
• Death certificate of your U.S. petitioner/relative.
• An "affidavit of support" on USCIS Form I-864. Your relative who died can't act as your financial sponsor anymore, so you need a "substitute sponsor." The substitute sponsor must be a U.S. citizen living in the U.S., over 18 years old, and related to you as a spouse, parent, legal guardian, mother-in-law, father-in-law, brother, sister, child (over 18), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild. Substitute sponsors must have enough in income and assets to support the immigrant(s) as well as their own household (and will, on Form I-864, promise to do so, as described in What Sponsors Should Know Before Signing Form I-864 Affidavit of Support.)
• Proof of the substitute sponsor's relationship to you. The best proof is copies of birth certificates and marriage licenses. So to demonstrate that someone is your brother, for example, you would submit copies of your birth certificate and your brother's birth certificate, each showing the same parent(s).
• Explanation of why you deserve humanitarian reinstatement, emphasizing the factors that USCIS finds favorable (as discussed below).

It would also be wise to include a cover letter, summarizing your request and clearly giving identifying information: the deceased sponsor's name and Alien Registration Number, if any, your name, and any other details you feel need explaining.

What Will USCIS Consider When Ruling on My Request for Humanitarian Reinstatement?

USCIS's decision on your request for humanitarian reinstatement is "discretionary," which means it can rule how it wants to, with very few limits on its authority. Reinstatement might be appropriate in "the furtherance of justice," bearing in mind that one of the goals of the U.S. immigration system is keeping families together. Some of the factors that USCIS has traditionally considered in acting on reinstatement requests include:

• the impact of revocation on the family unit in the U.S., especially on U.S. citizen or lawful permanent resident relatives or other relatives living lawfully in the United States
• if the applicant is elderly or in poor health
• if the applicant has resided in the U.S. lawfully for a long time
• if the applicant lacks strong ties to the home country, and
• if the applicant has been waiting a long time for the case to be processed, in cases where the delay is reasonably attributable to the government rather than the applicant.

Although family ties in the U.S. are important, you don't need to show "extreme hardship" to you or your relatives already living lawfully in the United States in order for the petition to be reinstated.

What Happens If USCIS Grants the Request for Humanitarian Reinstatement?

If USCIS decides to grant you humanitarian reinstatement, it will tell you. It will also send its the decision to either the Department of State (if you're outside the U.S.) or to the USCIS officer handling your adjustment application (if you're inside the United States).

Your case will then proceed as a normal family-based case would, with the substitute sponsor for the affidavit of support. All other requirements for getting the immigrant visa or green card remain the same.

What If USCIS Denies My Request for Humanitarian Reinstatement?

If USCIS decides not to grant you humanitarian reinstatement, it will tell you in writing. You can't appeal USCIS's decision. Unfortunately, this means you will have to find some other way of getting an immigrant visa or green card.

Getting Legal Help

Immigration law is complex to begin with, and the situation described in this article is an unusual one. It would be wise to enlist the help of an experienced immigration attorney.