The most common way in which people immigrate to the U.S. is through petitions from family members. This request for family reunification is made by the U.S. citizen or lawful permanent resident filing “Form I-130, Petition for Alien Relative” with the U.S. Citizenship and Immigration Service (USCIS). The approval of this petition by the USCIS will grant the beneficiary his or her priority date, which can be monitored by reviewing the Department of State’s Visa Bulletin each month.
“Priority dates” are necessary because there are more people applying for visas than there are actual visas available. As such, there is a backlog and people are sometimes forced to wait before a visa is available to them. This wait can even turn into years, and potentially decades.
Death of the Petitioner
Due to the potentially lengthy wait before the beneficiary of the approved petition will be permitted to immigrate to the U.S., there is the very real possibility of the petitioner’s death. And if the petitioner tragically dies before the beneficiary is granted permanent resident status, the underlying petition is revoked. It is revoked automatically and does not require any action to be taken by the USCIS or by the beneficiary.
This death would be tragic for multiple reasons. First, and most obvious, because of the passing of a beloved family member. But also because it would be eliminating the petition’s beneficiary (and their family members) from entering the U.S. and being granted their green cards. They may have waited many years for their opportunity, only to be devastated to find out they were no longer eligible because of the death of their petitioner.
“Humanitarian Reinstatement” may help people in this situation. In order to avoid starting over from scratch with a brand new petition (if you even have another family member who can petition you), it is possible to request the USCIS to reinstate the petition on humanitarian grounds.
There is no dedicated form for humanitarian reinstatement. In this particular situation, it is up to you – and your legal counsel – to present your situation in the most favorable light possible. An experienced immigration attorney can help you prepare a successful letter and further substantiate the urgency of your request with supporting documentation and evidence.
Will My Request be Approved?
Humanitarian reinstatement is quite different from many other USCIS processes in that there are no set requirements for determining eligibility. The USCIS has full discretion to decide whether or not your application should be approved based on the contents of your application. The USCIS states that, “Exercising discretion means weighing positive factors against negative factors to make a decision.” The USCIS generally looks more favorably upon cases that:
• Involve a foreign national who is elderly or whose health is failing;
• Involve an individual who has already lived in the U.S. for an extended period;
• May result in extreme hardship if the reinstatement is not approved;
• Involve a foreign national who lacks ties to his or her home country;
• Have taken an inordinate amount of time to process; and
• Will likely have a positive impact on family living in the U.S. if approved and a negative impact if not approved.
Beneficiaries Residing in the United States
In 2009, Congress passes Section 204(l) of the Immigration and Nationality Act. This section allowed more people to still be granted their green cards despite the death of the petitioner. However, in order to take advantage of Section 204(l), you must show that you were residing in the U.S. at the time of the petitioner’s death as well as at the time of seeking adjustment of status. There is no requirement that a person was residing in the U.S. lawfully at the time of the petitioner’s death.
Please see our article discussing Widow(er) Petitions (From I-360) for a more complete discussion about how humanitarian reinstatement applies to spouses.
Death of the Principal Beneficiary
Humanitarian reinstatement may also be requested when the principal beneficiary (the petitioner’s direct relative) dies, leaving the spouse and / or children (derivative beneficiaries) on their own. Under the Immigration and Nationality Act, derivative beneficiaries may continue to seek approval under a petition for which the “qualifying relative” is deceased. However, at least one of the derivative beneficiaries must have lived in the U.S. at the time of the principal beneficiary’s death.
Reeves Miller Zhang & Diza – Full-Service Immigration Law
At Reeves Miller Zhang & Diza we understand that the death of a beloved family member is a very traumatic event. And it can potentially be made even worse due to the harsh immigration consequences. However, options do exist and permanent resident status may still be available.
Contact Reeves Miller Zhang & Diza today for a confidential consultation about your case.