For many people, the Form I-130 is the only way to attain status in the United States; and yet, even this recourse can seem hopeless upon the death of the petitioner or even upon the death of the principal beneficiary.  The following questions relate to scenarios where either the petitioner of an approved or pending Form I-130 has died or the principal beneficiary of an approved or pending Form I-130 has died.

Frequently Asked Questions

  1. I am the beneficiary of a Form I-130.  The Form I-130 was approved, but the petitioner for my Form I-130 has died and my petition was revoked.  What can I do?
  2. I am the beneficiary of a Form I-130.  While the Form I-130 was pending, the petitioner for my Form I-130 died.  What can I do?
  3. I am a derivative beneficiary of a Form I-130.  The Form I-130 was approved, but the principal beneficiary died and the petition was revoked.  What can I do?
  4. I am a derivative beneficiary of a Form I-130.  While the Form I-130 was pending, the principal beneficiary died and the petition was revoked.  What can I do?

Answers to the Frequently Asked Questions

  1. If the petitioner for your Form I-130 died after your Form I-130 was approved, you qualify for what the USCIS calls “Humanitarian Reinstatement.”  In order to have your Form I-130 reinstated through Humanitarian Reinstatement, you need to make a written request with supporting evidence to the USCIS office that originally approved the petition. There is no form or fee to ask for Humanitarian Reinstatement.  The supporting evidence must include:
    • Your name and your deceased petitioner’s  name;
    • The receipt number of the petition (you can find this on the receipt notice);
    • Your alien registration number (A number), if you have one;
    • Your relative’s A number, if he or she had one;
    • Your relative’s death certificate (a certified translation is required, if not in English);
    • Form I-864 from substitute sponsor or Form I-864W; and
    • Evidence that a favorable exercise of discretion is warranted, which may include, but is not limited to:
      • Impact on family living in the United States (especially U.S. citizens, lawful permanent residents, or others lawfully present);
      • Advanced age or health concerns;
      • 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 and all other factors you believe weigh in favor of reinstatement, with supporting documentation.

What is the Form I-130 and How Does it Relate to Humanitarian Reinstatement?

The Form I-130 is a form used for citizens or lawful permanent residents of the United States to establish the relationship to certain alien relatives who wish to immigrate to the United States.  Humanitarian Reinstatement is a discretionary form of relief available to the principal beneficiary of an approved Form I-130 that was approved prior to the death of the petitioner.

Does Humanitarian Reinstatement Only Apply to Form I-130?

No.  While Humanitarian Reinstatement may only be requested by the principal beneficiary of an approved Form I-130 where the petitioner has died, Section 201(l) Relief for Surviving Relatives allows people to qualify for other forms of humanitarian relief as well.  For example, a derivative beneficiary may still be eligible to seek relief under Section 201(l) when a principal beneficiary dies after an approved Form I-130 or dies during a pending Form 1-130.

Additionally, If you were required to have Form I-864 and the petitioner died, you must have either a new Form I-864 from a substitute sponsor or Form I-864W, Intending Immigrant’s Affidavit of Support Exemption. The substitute sponsor must be:

  • A U.S. citizen, national, or lawful permanent resident;
  • At least 18 years old; and
  • Your 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.

How Do I Request Humanitarian Reinstatement?

You need to make a written request with supporting evidence to the USCIS office that originally approved the petition. There is no form or fee to ask for Humanitarian Reinstatement.  The supporting evidence must include:

  • Your name and your deceased petitioner’s  name;
  • The receipt number of the petition (you can find this on the receipt notice);
  • Your alien registration number (A number), if you have one;
  • Your relative’s A number, if he or she had one;
  • Your relative’s death certificate (a certified translation is required, if not in English);
  • Form I-864 from substitute sponsor or Form I-864W; and
  • Evidence that a favorable exercise of discretion is warranted, which may include, but is not limited to:
    • Impact on family living in the United States (especially U.S. citizens, lawful permanent residents, or others lawfully present);
    • Advanced age or health concerns;
    • 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 and all other factors you believe weigh in favor of reinstatement, with supporting documentation.

What Factors Will USCIS Consider When Ruling on My Request?

Because Humanitarian Reinstatement is a discretionary process, there is very few limits on its authority.  Reinstatement may granted “in furtherance of justice” by weighing the positive factors of the decision against the negative factors (weighing the “pros” against the “cons”).  Some of the traditional factors used to decide whether Reinstatement is appropriate are:

  • 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.

How Do I Know if I Can Seek Relief Under Section 201(l) – Relief for Surviving Relatives?

You may be eligible to seek relief under Section 201(l) if you are a:

  • Principal or derivative beneficiary of Form I-130 (regardless of whether the petitioner was a U.S. citizen or lawful permanent resident), and the petitioner died;
  • Derivative beneficiary of Form I-130, (regardless of whether the petitioner was a U.S. citizen or lawful permanent resident), and the principal beneficiary died;
  • Derivative beneficiary of Form I-140, and the principal beneficiary died;
  • Beneficiary of a pending Form I-730, and the petitioner died;
  • T or U nonimmigrant visa holder in a derivative classification (T-2, T-3, T-4, T-5, U-2, U-3, U-4, U-5) and the principal (T-1 or U-1) visa holder died; or
  • Derivative asylee (AS-2 or AS-3) and the principal asylee (AS-1) died.

In addition to the eligibility requirements, Section 201(l) requires that at least one beneficiary or derivative beneficiary resided in the United States when the relative died and continues to reside in the United States when seeking relief.  For the purposes of Section 201(l) you reside in the United States if your “residence” is in the United States.  “Residence” is defined as your primary home or your “principal actual dwelling place in fact, without regard to intent.” (See section 101(a)(33) of the Act.)

How Can I Seek Relief Under Section 201(l)?

If your petition was pending:  You need to make a written request to have USCIS apply section 204(l) to your case.  If your relative dies while the petition is pending, you should specifically ask USCIS “to approve the petition under section 204(l),” despite your relative’s death.  You must send your written request to the USCIS office currently processing your case, the address of which is on the receipt notice (Form I-797).  However, if USCIS transferred the case to a different office, send your request to the new office listed on the transfer notice.

If your  petition was approved AND you are not ready and/or able to file Form I-485 yet:  If your relative dies after the petition (for example, Forms I-130 or I-140) is approved, you should specifically ask USCIS “to reinstate the approval of the petition under section 204(l).”  You must send your written request to the office that approved your petition.

If your petition was already approved when your relative died AND you have a visa available and are ready to file Form I-485: Send your written request with your Form I-485 package per Instructions for Form I-485.

If you have already filed Form I-485 (whether or not your petition was pending or already approved): Send your written request to the USCIS office having jurisdiction over your application.

If you are in T or U nonimmigrant status: Send your written request to the Vermont Service Center.

If you are in asylee status: Send the written request with your Form I-485 package when you file for adjustment of status, if applicable, per Instructions for Form I-48.

Your request for relief should include:

  • Your name, your deceased relative’s name, and the names of any other beneficiaries on the same petition;
  • Your alien registration number (A number), if you have one;
  • Your deceased relative’s A number, if he or she had one;
  • The A number for any other beneficiaries, if they have one;
  • The receipt number on your petition or application;
  • Your relative’s death certificate (a certified translation is required, if not in English);
  • Proof of your residence (examples include, but are not limited to: lease/mortgage, utility bills, pay stubs, school records, etc.) at the time of your relative’s death up until the present time (note: only one of the beneficiaries on a petition with derivatives needs to meet the residence requirement); and
  • Form I-864, under Section 213A of the Act, from a substitute sponsor or Form I-864W, if applicable.

 

For the most recent and updated information, please visit the USCIS website at https://www.uscis.gov.