HUMANITARIAN REINSTATEMENT OF I-130 PETITION
When the petitioner of a relative petition dies after it is approved but before the visa is issued, the petition is automatically revoked. The beneficiary can have this petition reinstated by filing a Petition for Humanitarian Reinstatement. This Guide applies to beneficiaries who reside abroad.
PROCEDURAL REQUIREMENTSFirst requirement is the I-130 petition must have been approved before the petitioner died. Second requirement is there must be somebody who is a U.S. citizen or legal permanent resident who is willing to submit an affidavit of support. In addition, he/she must be at least 18 years old and the beneficiary's 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.
If these two requirements are met, the case is eligible for humanitarian reinstatement (HR). After making this determination, the applicant has to notify the office where the case is pending of the fact of death of the petitioner. If it's with the National Visa Center (NVC), the beneficiary has notify this office of the fact of death by sending NVC the death certificate. The NVC then will return the case to the USCIS office which approved the petition. The petition for HR should be filed with the USCIS office which approved the petition. It's wise to wait until the USCIS receives the case file before you file the petition for HR because your HR packet might just get lost if USCIS receives it without the main file. It takes at least one year before USCIS issues its decision. You should get an acknowledgement receipt from USCIS that they received your HR packet. If USCIS approves your petition for HR, it will tell you in writing and the case will proceed as if the petitioner didn't die. If USCIS denies your petition for HR, it will tell you in writing. You can't appeal USCIS's decision. Unfortunately, this means you will have to find some other way of getting an immigrant visa or green card.
SUBSTANTIVE REQUIREMENTSWhen making an assessment whether a petition for HR would fly or not, I ask if the beneficiary has any immediate relatives in the U.S. such as a parent or a sibling. This is important because family reunification is the primary goal of immigration. USCIS uses these factors in granting or denying an HR: 1) the impact of revocation of the petition on the family unit in the U.S., disruption of family unit, 2) if the beneficiary is the only family member left overseas while the rest of the family is in the U.S., 3) the beneficiary is elderly, sickly, and has no home to go to, 4) delay in the processing of the I-130 due to the fault of USCIS, 5) length of residence in the U.S.