Humanitarian Reinstatement

Lal Varghese, Attorney at Law, Dallas

Recently, lot of people are confused about the scope of humanitarian re-instatement. There are two types of humanitarian re-instatement available under the U. S Immigration Laws. It is a discretionary form of relief available to the principal beneficiary of an approved Form I-130, Petition for Alien Relative, that was approved prior to the death of the petitioner. The first one is provided under section 204(l) of the Immigration and Nationality Act when the principal beneficiary living in United States when the petitioner dies. The other one is provided when the petitioner dies and the principal applicant is living outside United States. The humanitarian reinstatement is needed since under the U. S Immigration Laws when the petitioner dies prior to the approval of the petition, it cannot be continued to be processed and other scenario is that when the petitioner dies after the approval of the petition and before the principal enters on immigrant visa. After the approval of the petition if the petitioner dies the approved petition is automatically revoked under law. Hence, a humanitarian reinstatement request need to be filed to cancel the automatic revocation under the laws.

The basic eligibility for humanitarian reinstatement under section 204(l) cases is that it is only be requested by the principal beneficiary when the petitioner of an approved Form I-130, Petition for Alien Relative, has died. Humanitarian reinstatement cannot be granted if the petitioner died while the petition was pending, but see Basic Eligibility for Section 204(I) Relief for Surviving Relatives to see if you may qualify for another form of relief.

Most immediate relatives and family-based immigrants are required to have Form I-864, Affidavit of Support under Section 213A of the Act. The petitioner’s death does not change the way that the Form I-864 requirement applies to each case. 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. 

The above named relatives must the relatives of the principal beneficiary and not of the deceased petitioner. Lot of people are confused about this also, since you cannot simply find someone related to you and submit new affidavit of support and continue to process the case. You must submit copy of the death certificate and submit your request with evidence that you are eligible along with the affidavit of support from a qualified relative.

Humanitarian reinstatement is a discretionary benefit. Exercising discretion means weighing positive factors against negative factors to make a decision. In addition to meeting the basic requirements for humanitarian reinstatement, your request must warrant a favorable exercise of discretion, meaning that the “pros” in granting your request outweigh the “cons.”  There is no form or fee to ask for humanitarian reinstatement. You need to make a written request with supporting evidence to the USCIS office that originally approved the petition.  When you request humanitarian reinstatement, be sure to include 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

On the other hand when a petitioner dies in an approved petition while the principal beneficiary is outside United States and if the case is at National Visa Center or at Consulate, a copy of the death certificate of the petitioner must be submitted immediately alerting NVC or Consulate about the death of the petitioner. You are not allowed to conceal the death of the petitioner and if continue to process the case either before NVC or at Consulate it considered as fraud. Once NVC or consulate receives the copy of the death certificate they will return the file to USCIS since the approved file is automatically revoked. If you believe that there are favorable factors in your case, a humanitarian re-instatement request must be filed with the USCIS which approved the petition. As stated above there is no form or fee need to be paid to USCIS, but a request in writing by the principal beneficiary with enough supporting documents need to be filed in order exercise the humanitarian reinstatement.

In the case of family relations like spouse, parents, children, the exercise of the discretion may be warranted provided enough supporting documents and evidence are filed along with the request. There are lot of misunderstanding about this discretionary relief. In the case of brother and sister case this discretion is very seldom exercised since there is no such circumstances existed to warrant discretion. Similarly, when the principal beneficiary dies, no one can file humanitarian reinstatement. There are lot of agents misguiding people in India about this discretionary relief and you should always consult with an experienced immigration attorney before doing anything. Also, lot of agents in India advise people to conceal the death of the petitioner, which is very serious matter and whoever signs the affidavit of support with petitioner’s signature is committing fraud and will be liable for criminal fraud charges.

Disclaimer:  Lal Varghese, Attorney at Law, with more than 36 (about 21 years in U. S. Immigration Laws) years of experience as an Attorney, mainly practices in U. S. immigration law and is located in Dallas, Texas. He does not claim authorship for above referenced information since it is obtained from several sources including USCIS, DOS web sites, AILA and other Internet based legal sources, and published for the benefit of the general public. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matter collected from various legal sources. For individual cases and specific questions you are advised to consult any attorney of your choice or contact your State Bar Organizations or local Bar Associations or American Immigration Lawyers’ Association (AILA) for finding an attorney or for any legal help. You can visit our website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa.blogspot.com or www.facebook.com/groups/usattorney for information about U. S. immigration law related matters. Lal Varghese, Attorney at Law can be reached at (972) 788-0777 or at his e-mail: attylal@aol.com if you have any questions.