By Attorneys Robert L. Reeves and Jeremiah Johnson
After the death of a love one you may question whether the visa filed on your behalf in the past is still valid. When the petitioner in a family based petition passes away, the petition is automatically revoked pursuant to federal regulations. However, pursuant to the same federal regulations, the Attorney General may in his discretion reinstate the approval of your family based visa. The Attorney General may exercise favorable discretion where “for humanitarian reasons revocation would be inappropriate.” 8 C.F.R. Sec. 205.1(a)(3)(i)(C). Such an exercise of discretion is not automatic; rather the process requires the beneficiary to affirmatively request and document why such humanitarian relief should be granted. Such a request is more commonly known as “humanitarian reinstatement.”
Although whether to grant humanitarian reinstatement often comes down to a matter of discretion, there are a few procedural requirements. First, a family visa petition may only be “reinstated” if the visa petition has already been approved by the United States Citizenship and Immigration Services. Furthermore, the beneficiary must file a written request and attach the appropriate supporting documentation. Although there is no fee for this filing, the request must include, among other things, a new I-864 affidavit of support from a family member.
Similar to other cases requiring the favorable exercise of the Attorney General’s discretion, a request for humanitarian reinstatement must be very well documented and supported be overwhelming evidence of the humanitarian reasons demonstrating that revocation would be “inappropriate.” The humanitarian reasons the Attorney General will consider include personal reasons like family ties in the United States or whether there was a special relationship between the petitioner and the beneficiary; health factors including any health concerns relating to the beneficiary’s family; financial or educational factors; and or any other special factors that should be considered. Some of these special factors the Attorney General may consider include the length of time the beneficiary spent waiting for the visa to become current or any special need for the beneficiary in the United States like caring for other relatives. Humanitarian reasons may also include several of the hardship factors discussed in previous articles as well.
Because the Attorney General may deny a seemingly compelling request for humanitarian reinstatement, it is important to file a request that not only is well documented, but also stands out or presents overwhelming and unique or unusual reasons. One way to identify the appropriate reasons to present to the Attorney General is to discuss your matter with a knowledgeable and experienced immigration attorney. It is important to remember that every request for humanitarian reinstatement necessarily involves humanitarian reasons (i.e. the death of the petitioner); however the key is to demonstrate why revocation in your instance would be inappropriate.