Under our immigration laws, when the petitioner dies, an approved I-130 is automatically cancelled. In the 90’s the United States Citizenship and Immigration Services (USCIS) issued a regulation ameliorating the harsh consequence of death of the petitioner by allowing the I-130 petition to be reinstated for humanitarian reasons. In order to seek humanitarian reinstatement or revalidation of a visa petition, the beneficiary of the petition must submit a written request to USCIS office where the original visa petition was filed and/or adjudicated. The petition must have been approved and there must be a qualifying relative who will execute the affidavit of support to be eligible for humanitarian reinstatement. Whether or not to grant reinstatement is a matter of discretion to USCIS. As such, there is no appeal from the denial of the request to reinstate the I-130 petition based on humanitarian grounds.
The approval or denial of a petition for humanitarian reinstatement should be based on “the facts of each individual case, particularly those cases in which failure to reinstate would lead to a harsh result contrary to the goal of family reunification.” In evaluating requests for reinstatement of a petition for humanitarian reinstatement, the following factors are taken into consideration: disruption of an established family unit; hardship to U.S. citizens or lawful permanent residents; if the beneficiary is elderly or in poor health; if beneficiary has had lengthy residence in the United States; if beneficiary has no home to go to; undue delay by DHS or consular officer in processing petition and visa; and if beneficiary has strong family ties in the United States. From these enumerated factors, it is evident not all beneficiaries will qualify for humanitarian reinstatement.
The good news is there is an easier alternative to humanitarian reinstatement. On October 29, 2009, President Obama signed a new law that allows beneficiaries to continue to be eligible for adjustment of status even when their qualifying relative has died. Under the new law, the petition does not have to be approved. It is sufficient that a petition has been filed by the petitioner or on behalf of the petitioner before his or her death. The following are the eligibility requirements:
1) The beneficiary must be residing in the United States at the time of death of the petitioner and at the time of application for adjustment of status under this new law; and
2) USCIS must adjudicate the application for adjustment of status unless the approval of the adjustment of status would not be in the public interest.
The new law applies to:
1) Aliens with pending or approved I-130 petitions as immediate relatives such as a spouse, parent, or child under 21 of a U.S. citizen;
2) Aliens with pending or approved I-130 petitions including their spouses and children under 21 under the following categories: F-1 (single adult son or daughter of U.S. citizen), F-2A (spouse and unmarried child below 21 of a green card holder), F-2B (single adult son or daughter of green card holder), F-3 (married child of a U.S citizen), and F-4 categories (brothers and sisters of U.S. citizen;
3) Derivative beneficiaries, which are the spouse and children under 21, of an alien with a pending or approved I-140 petition. An I-140 petition is one filed by an employer as compared to an I-130 which is filed by a family member. This means that the derivative beneficiaries can pursue the application for adjustment of status even if the dead primary beneficiary of the petition is no longer working with the petitioner/employer.
4) Pending or approved petitions for asylees, refugees, crime victims, and victims of human trafficking.
For beneficiaries who do not fall under the immediate relative category, they have to wait for their priority dates to be current before they can apply for adjustment of status. Oftentimes, by the time their priority dates become current, they have been out of status in the United States. For these cases, the alien must have the benefit of 245(i) to be eligible to apply for adjustment of status under the October 2009 law of President Obama. In order to qualify for the 245(i) benefit, the I-130 or I-140 petition must have been filed before April 30, 2001. If the petition was filed between January 14, 1998, and April 30, 2001, the alien must establish that he or she was physically present in the United States on December 21, 2000. A beneficiary of a petition filed before January 14, 1998, does not have to establish a physical presence in the United States on December 21, 2000.