Humanitarian Reinstatement of a Form I-130 When Petitioner Dies

Widow and Widower Self Petitions

In most situations, a US Citizen or legal permanent resident (LPR) is required to initiate the petition for an intending immigrant. In the case of widows and widowers of US Citizens or children of widows and widowers of US Citizens, however, an I-130 may be filed by the petitioning immigrant without a US Citizen or LPR as long as he or she was married to the US citizen for at least two years at the time of death. In addition, the petitioning immigrant must not have been legally separated from the US Citizen at the time of death.

If the surviving spouse remarries, the right to a self petition ends at that time. If the I-130 was filed before the US Citizen spouse died, the application will be treated as a normally filed petition as long as the marriage had lasted at least 2 years and there was no legal separation at the time of death.

In the case that a petitioning immigrant widow is inadmissible and needs to apply for a waiver, problems will arise if the only US Citizen relative is the deceased spouse.

Humanitarian Reinstatement of Approved I-130 Petitions when the Petitioner Dies

According to USCIS regulations, an I-130 is automatically canceled when the petitioner dies. While USCIS allowed for the reinstatement of I-130’s if a humanitarian situation existed, IIRAIRA’s passage in 1996 put a stop to this based on the fact that a dead petitioner cannot file a binding affidavit of support.

In 2002, however, legislation was passed to allow an alternate sponsor to file an affidavit of support if the principle sponsor passes away if the Attorney General grants a humanitarian reinstatement. The new alternative sponsor must have a special relationship with the beneficiary (spouse, parent, in-law, sibling, child, grandparent, grandchild or legal guardian who is 18 years old).

According to 8 CFR § 205.1(a)(3)(i)(C)(2),  there are instances of humanitarian crisis wherein it would be inappropriate to revoke an approved I-130 petition. In this case, the principle beneficiary must ask for reinstatement of the petition’s approval and demonstrate that they have a qualifying relative sponsor willing to file an affidavit of support. Since the approved petition is automatically revoked at the time that the principle sponsor passes away, the beneficiary must make a request for reinstatement.

In order to file for a reinstatement, the beneficiary must submit a written request to the USCIS office where the original I-130 was submitted. A copy of the death certificate of the original petitioner must be included along with proof of the relationship between the substitute petitioner and the beneficiary. Also include a new affidavit of support from the substituting petitioner and a copy of the original I-130 approval.

In cases where a revocation of the I-131 reinstatement request is contrary to the furtherance of justice, the officer should use his or her authority to grant the request. There is no set rule or precedent to help an officer make this decision, but discretion in not revoking the approval should be the rule and not the exception. This discretion will not be exercised if there are doubts regarding the bona fide nature of the relationship between the beneficiary and the substitute sponsor.

It must be made clear that Humanitarian Reinstatement of an I-130 can only be utilized if the I-130 was approved prior to the petitioner’s death.

Procedure for Reinstatement of an I-130

If the officer decides that a petition for reinstatement is worthy of humanitarian consideration, the officer should prepare a memorandum requesting that the petition be considered for Humanitarian Reinstatement. This memo should be sent along with the original petition to DHS.

DHS will consider the following factors in deciding how to rule on a petition:

a)     Disruption of an established family unit

b)     Hardship for US citizens or LPRs if the I-130 is not reinstated

c)      Whether or not the beneficiary is elderly or in poor health

d)     The length of time the beneficiary has been present in the US

e)     Whether or not the beneficiary has a home to go to outside of the US

f)       Undue delay by DHS or the consular officer in processing the petition and/or visa

g)     The strength of establishment of family ties that the beneficiary has in the US

If the petition is approved by DHS, it will then be forwarded to the DHS District Director.

Important Information Regarding Reinstatement of I-130s

• If the petitioner dies after the principle beneficiary has already moved to the US and become an LPR, the derivatives retain the ability to follow the principle beneficiary despite the death of the petitioner.
• Currently, there is no fee required to file a petition for reinstatement of an I-130.
• There is no set processing time for these petitions for reinstatement.
• The substitute sponsor is not required to be at the adjustment of status interview, but evidence should be provided to demonstrate the relationship between the beneficiary and the substitute sponsor, and the new I-864 for the substitute sponsor should be brought to the interview.

Immigration Attorney Assistance with Humanitarian Reinstatement of I-130s

To learn more about the process for filing for Humanitarian Reinstatement of Dead I-130s, please contact immigration attorney direct line (949)228-3922 or email me at attorney@lawofficesofjackcsung.comto receive a free consultation with immigration attorney.  Office hours are Monday to Saturday from 9:00AM to 9:00PM, and email consultation is available 24 hours a day, 7 days a week.  Immigration law office located at 2975 Wilshire Blvd. Suite 352 in Los Angeles, California.  Free immigration consultation and advice within 24 hours guaranteed.