Asking USCIS for Humanitarian Reinstatement of I-130 Petition

When you are applying for an immigrant visa or “green card” through a relative, but your relative dies before you are able to get the visa or green card, you might not be able to proceed with your case. This is because the petition filed by your relative as a necessary part of your visa/green card application is revoked under certain circumstances when your 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 CFR § 205.1(a)(3)(i)(C)(2).)

How to Make the Request

You can request humanitarian reinstatement of a petition only if it had already been approved when your 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:

• Copy of the USCIS approval notice for the revoked petition.
• Death certificate of your 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. That person must have enough in income and assets to support you as well as his or her 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 prove 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?

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 you are elderly or in poor health
• if you have resided in the U.S. lawfully for a long time
• if you lack strong ties to your home country, and
• if you've been waiting a long time for your case to be processed, in cases where the delay is reasonably attributable to the government rather than you.

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?

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 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?

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.