California Immigration for Humanitarian Reinstatement - SEC. 204 (I)
Section 204(l)
Call Us (619) 746-8879
There are many types of visas that people can apply for in the United States depending on their personal situation. There is an immigration option available to people who have a close family relationship with a citizen in this country, described as an Immediate Relative.
The US Department of State it also allows people to apply for this type of visa if they have a more distant family relationship, also known as a Lawful Permanent Resident, such as spouses and unmarried sons and daughters. However, if a person who filed an I-130 petition dies, the petition is automatically revoked, so not only will they have to grieve for their family member, but they will also lose their chance to immigrate.
That is why there are three remedies available in this type of situation that would allow certain beneficiaries and family members to seek an immigration benefit, despite the fact that the petitioner is deceased, and the options are:
- Survivor benefits for widows or widowers of US citizens under INA § 201(b)(2)(A)(i);
- Other benefits for certain surviving family members under INA §204(l); and
- Humanitarian reinstatement of an approved I-130 petition.
Each of these remedies has different eligibility criteria and legal authorities, so read on for more important details you need to know.
Widow(er) of US citizens
This is a humanitarian reinstatement available to widows and widowers of US citizens. These have a wide avenue of relief if your US citizen spouse dies. They may remain classified as an immediate relative and may also remain eligible to immigrate if they choose to file an I-360 self-petition. However, this must be done within two years of the citizen’s death.
When a US citizen dies and the spouse has a pending Form I-130, they automatically switch to a Form I-360. In other words, the applicant does not need to reapply. However, they cannot remarry before adjustment of status or receive an immigrant visa.
The widow or widower must file a I-485, Application to register permanent residence or adjust status, and must include the following supporting documents. They can do this at the same time they file the I-360:
- Two passport photos;
- Copy of the birth certificates of the applicant and their accompanying children;
- Copy of passport page with admission stamp or other proof of admission;
- Form I-693 medical exam, valid for one year, which can be submitted at the time of interview to avoid expiration;
- Form I-864W Waiver Application for Intent Immigrant Affidavit of Support;
- Copy of receipt and I-130 approval, if applicable; o receipt and approval of Form I-360; or
- Form I-360 with required documents, including death certificate and documentation evidencing a bona fide marriage, if filed concurrently with I-485.
Relief Section 204 (I)
INA § 204(l) covers several categories of pending or approved petitions and the only way you can apply for Section 204(I) relief is through a USCIS office with supporting evidence. An expert in immigration law will be your ally in this petition and will also help determine what stage of the process you were in, as well as the next steps you should take.
This relief applies to, according to the Immigrant Legal Resource Center (ILRC):
- Beneficiary and derivatives of a pending or approved I-130 petition if the petitioner or primary beneficiary is deceased;
- The derivative beneficiary of a pending or approved I-140 beneficiary if the primary beneficiary is deceased;
- The beneficiary of a pending or approved I-730 if the petitioner is deceased;
- Individual admitted as U or T derivative beneficiary if principal deceased
- Derivative refugee where the primary refugee has died.
To apply, all you need to do is submit a cover letter explaining your eligibility and also provide supporting documents. Note that the 2014 (I) petitions are different from the Humane Reinstatement petitions “in that the former has statutory authority and mandatory language, while the latter is entirely a creature of USCIS regulation and is highly discretionary. Sometimes 204(l) applications are confused with humanitarian reintegration applications, which have very different eligibility criteria,” the aforementioned website explains.
Also, unlike other forms of relief, the statute requires that the applicant reside in the United States at the time of the qualifying relative’s death and continue to reside in the United States. They may also be deemed inadmissible at the time of the immigrant visa interview and may be required to show an affidavit of support.
To file an application, USCIS instructs applicants to include the following with a 204(l) application:
- Full name of the applicant, the deceased relative and the names of any other beneficiaries;
- Any A number of applicant, deceased relative or derivatives;
- The receipt number of the underlying petition or application and a copy of the receipt and approval notice, if applicable;
- The relative’s death certificate;
- Proof of residence in the United States at the time of death for at least one beneficiary;
- Form I-864 Affidavit of Support from a Surrogate Sponsor, or an I-864W, Immigrant Affidavit of Support Waiver, if applicable.
Humanitarian restoration
The intent of family-based legal immigration (which typically begins with an I-130 petition) is to unify families, but it is a process that can take a long time (years or even decades). Also, it is possible that in the process the petitioning relative could die before the visa is approved and therefore the petition is automatically canceled or revoked.
For example, spouses and children of legal permanent residents have to wait around two years for their visa or Green Card to be approved, five years for unmarried children, and more than 12 years for brothers and married sons and daughters. Also, people who were born in countries like China, Mexico, the Philippines, or India, might even have to wait up to 23 years.
However, if this is your case, you can find relief and continue your visa application process if you are a (according to US Citizenship and Immigration Services, USCIS):
- Principal or derivative beneficiary of Form I-130, Petition for Alien Relative (regardless of whether the applicant was a US citizen or lawful permanent resident), and the applicant is deceased;
- Derivative beneficiary of Form I-130, Petition for Alien Relative (regardless of whether the applicant was a US citizen or lawful permanent resident), and the primary beneficiary is deceased;
- Derivative beneficiary of Form I-140, Immigrant Petition for Alien Worker, and the primary beneficiary is deceased;
- Beneficiary of a pending Form I-730, Refugee/Asylee Relative Petition, and the petitioner is deceased;
- T or U nonimmigrant visa holder in a derived classification (T-2, T-3, T-4, T-5, U-2, U-3, U-4, U-5) and principal ( T-1 or U-1) the visa holder died; or
- The derivative asylee (AS-2 or AS-3) and the primary asylee (AS-1) died.
Additionally, if you can show that your primary residence at the time your petitioning relative died was and still is in the United States, you may also benefit from the Section 204(I) Relief for Surviving Family Members listed above.
The US Citizenship and Immigration Services also specifies that you can benefit from this section if your family member has died:
- While the petition (for example, Forms I-130 or I-140), or Form I-730 was pending;
- After the petition (for example, Forms I-130 or I-140) has been approved;
- While your Form I-485, Application to Register Permanent Residence or Adjust Status, was pending;
- While in T or U nonimmigrant status, but before you filed Form I-485;
- While in T or U nonimmigrant status, after you filed Form I-485;
- While in asylum status, before filing Form I-485; either
- While in asylum status after filing Form I-485.
The idea of this relief is to offer an option to beneficiaries who are in a situation of humanitarian reincorporation. It is an application to substitute another family member, known as a substitute sponsor, for your applicant family member who died. This will allow you to continue with the process related to your immigration.
For example, in this hypothetical case, José, a US citizen, filed an I-130 for his 24-year-old unmarried son Nelson in El Salvador in 2014. The I-130 was approved in 2015 but in 2018, José approved far . Nelson has always resided in El Salvador and, after José’s death, the I-130 petition was automatically revoked. Following this, Nelson would need to apply for humanitarian reinstatement of the I-130 petition and find a substitute sponsor. After you file the human resources application with the local office that adjudicated the I-130 petition, your case will go through the consulate when your Priority Date becomes effective.
An immigration attorney will be able to help you choose a substitute sponsor, who would not only need to meet the same requirements as the original petitioner, but would also need to reside in the United States and be able to demonstrate financial support.
It is important to know that humanitarian reinstatement is a discretionary measure, which means that several factors are taken into account to decide whether or not to approve it.
California is home to more than 10 million immigrants, according to The New York Times, and if you live in this state and are looking for an immigration attorney, you’ve come to the right place.