Here is an overview of humanitarian reinstatement. Each case is different. Schedule an individual consultation if you want advice on your situation. The election of Donald Trump may change how these applications are handled.
When Your Petitioner Dies
What happens if the petitioner dies? This often happens, especially when you’re in countries with very long lines including the Philippines, Mexico, China, and India. If your U.S. petitioner passes away during the years before the interview, you might still be able to continue with your case. This can happen also if the ‘principal beneficiary’ dies and you are their spouse or child.
In 2009 a new law, Section 204(l) of the Immigration and Nationality Act, was passed which allows more applicants to preserve their case status. It applies in family and employment-based cases, refugee/asylum, and U and T visa cases.
First, let’s explain some terms – who’s who?
- Petitioner – the U.S. citizen or green card holder who files for the relative abroad;
- Principal beneficiary – the direct relative of the petitioner who is named in the petition – a spouse, parent, child, or sibling;
- Derivative beneficiary – the spouse or child of the principal beneficiary who is also eligible to immigrate.
For example, if Marie in the U.S. sponsors her adult son Pablo, his wife Lyn and their son Ricky to immigrate, the petitioner is Marie, the principal beneficiary is Pablo, and the derivative beneficiaries are Lyn and Ricky. There is always a petitioner and principal beneficiary but there may not be derivatives.
Widows or widowers of U.S. citizens are in the best position under the 2009 law (I’ll just use ‘widow’ here but the same laws apply to widowers). If your U.S. citizen spouse had filed a petition for you, your case may automatically convert to a widow’s petition. Even if your spouse had not yet filed for you, you can file your own I-360 petition within two years of your spouse’s death. In these cases an affidavit of support is not required. Widows of green card holders are treated differently. Your spouse must have filed a petition for you before the death, and any derivative beneficiaries (minor children) are still eligible. Either the widow or one of the derivative beneficiaries must meet a U.S. residence requirement: the primary home when the relative died – where you were actually living – was in the United States, and it is still in the United States. Also, an affidavit of support is required from a relative who must be one of the following: 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, and be a U.S. citizen, national, or lawful permanent resident who is at least 18 years old.
The same rules apply to relatives who are not widows, and at least one beneficiary must meet the U.S. residence requirement. For more details on the provisions for widows of green card holders and other relatives, see Section 204(l) of the Immigration and Nationality Act. There is no form or fee for the request, and if the request is granted the government will continue to process the petition.
Widows and other relatives who do not meet the residence requirement can apply for ‘Humanitarian Reinstatement‘ which has been available for many years. Normally when a petitioner dies, the petition is revoked and returned to U.S. Citizenship and Immigration Services (USCIS). At any time after that, even years later, the principal beneficiary can request humanitarian reinstatement. It can take months or years to go through this process; there is no form or fee. Regarding the decision, USCIS states on its website: “Exercising discretion means weighing positive factors against negative factors to make a decision…meaning that the “pros” in granting your request outweigh the “cons”….
Evidence that a favorable exercise of discretion is warranted… 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.”
In other words, you should show strong ties to family in the U.S. and/or your own history in the U.S. and other factors that will show why you should be allowed to become a legal permanent resident. In most cases an eligible relative must submit an affidavit of support as a substitute sponsor.
The substitute sponsor cannot be an aunt, uncle or cousin. 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.
It’s smart to have an immigration attorney help you decide which of these laws may apply, navigate the process and prepare the evidence to support a favorable exercise of discretion in a humanitarian reinstatement case. In many cases it’s not automatic or easy. To contact us for an evaluation, please schedule a consultation. There’s a $100 fee for the initial consultation, and we will ask you to complete a detailed questionnaire and provide your documents. If you do not have a strong case, Attorney Keir will tell you that. If you do have a good case, she will explain how to proceed.
Client testimonial in humanitarian reinstatement case
In 2015 Gilbert and Imelda Asuncion and their four children, all Filipino citizens, hired Attorney Keir to apply for Humanitarian Reinstatement. Back in 1987, Gilbert’s sister, a U.S. citizen, sponsored (petitioned) him for a green card. Sadly his sister passed away many years before his priority date became current and the petition was automatically terminated. They asked the U.S. government to still grant them green cards even though their petitioner had died. It was a complicated and difficult application and takes much more than a simple letter to the government. We submitted a great deal of evidence in the Asuncions’ favor. After a year of ups and downs including an appeal the family was thrilled when all six family members received green cards!
The Asuncions write:
“With this kind of complicated case it is better and worth it to hire a well- experienced Immigration Attorney. Attorney Keir handled our case as top priority no matter how difficult it was. She is an honest person and very supportive all through the way, you can ask whatever doubts you have and she is always open to whatever pros and cons of your case. She cannot promise miracles but she will do whatever it takes to win the case. She was always available whenever we needed clarification. We could contact her whichever side of the globe we were in.
We found Attorney Keir through Facebook. We searched a lot of lawyers and recommendations from friends and had their backgrounds checked and she stood out. We read her profile through her website and we felt she matched what we are looking for. Her legal fees are competitive and worth it because our doubts were clarified and we are very much satisfied with her answers to our queries. We will definitely spread the great news and the dramatic change in our lives here in America!”