Immigration in California for humanitarian reinstatement

At Kannan Law we can help you with your immigration status

There are several types of visas that people can apply for in the United States, after taking into account their personal situation. In this regard, there is an immigration option available for people who have a close family relationship with a citizen in this nation, described as Immediate Relative.

The US State Department also allows people to apply for this type of visa if they have a more distant family relationship, also known as a Legal Permanent Resident, and spouses and unmarried children are eligible. However, if a person who filed an I-130 petition dies, it is quickly revoked, therefore, they will lose their opportunity to immigrate.

For this reason, there are three known options available in this type of situation that would allow certain beneficiaries and family members to seek advantages for their immigration process despite the death of the petitioner.

Survivor benefits for widows or widowers of U.S. citizens under INA § 201 (b) (2) (A) (I).
Other benefits for certain surviving family members under INA § 204 (l).
Humanitarian reinstatement of an approved I-130 petition.

The aforementioned options have different eligibility criteria and legal authorities.

Widow(er) of US citizens

This is a humanitarian reinstatement available to widows and widowers of US citizens. Such a document creates a broad avenue for relief if their US citizen spouse dies. They can remain classified as immediate relatives and may also remain eligible to immigrate if they decide to file an I-360 self-petition. However, this must be done within two years of the citizen’s death.

When an American dies and the spouse has a pending Form I-130, it automatically changes to an I-360, meaning the applicant does not need to re-petition. However, they cannot remarry, need to wait for an adjustment of status, or receive an immigrant visa.

The widow or widower must file an I-485 Application to Register Permanent Residence or Adjust Status, and must include the following supporting documents:

Two passport photos.
Copy of the birth certificates of the applicant and his or her children or companions.
Copy of the passport page with a stamp or other proof of admission.
Medical examination of Form I-693, valid for one year, which can be presented at the time of the interview to avoid expiration.
Form I-864W, which is the Application for Waiver of Affidavit of Support for Intended Immigrant.
Copy of the receipt and approval of the I-130 application, if applicable; or receipt and approval of the I-360 form. You may also submit the latter with the required documents, which include the death certificate and documentation to evidence a bona fide marriage if filed simultaneously with I-485.

Section 204(I) Relief

INA § 204(l) covers several categories of pending or approved petitions and the only way you can apply for Section 204(I) relief is by going to a USCIS office. An immigration law expert 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.

According to the Immigrant Legal Resource Center (ILRC), this relief applies to beneficiaries and derivatives of a pending or approved I-130 petition if the petitioner or principal beneficiary dies, as well as in the following cases:

The derivative beneficiary of a pending or approved I-140 beneficiary if the principal beneficiary dies.
The beneficiary of a pending or approved I-730 if the petitioner dies.
The individual is admitted as a U or T derivative beneficiary upon the death of the principal.

To apply, all you need to do is submit a cover letter explaining your eligibility and also provide supporting documents. Note that 2014(I) applications are different than Humanitarian Reintegration applications, “as the former has statutory authority and mandatory language, while the latter is highly discretionary. Sometimes 204(l) applications are confused with Humanitarian Reintegration applications, which have very different eligibility criteria,” the ILRC website explains.

Unlike other forms of relief, the statute requires the applicant to be residing in the United States at the time of the qualifying relative’s death and continue to live in the same country. 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 a petition, USCIS instructs applicants to include the following:

The full name of the applicant, deceased relative, and any other beneficiaries must be listed. The receipt number of the underlying petition or application and a copy of the receipt and approval notice (if applicable).
The death certificate of the relative.
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 Substitute Sponsor), or an I-864W, (Affidavit of Waiver of Immigrant Support), if required.

Humanitarian reinstatement

The intent of family-based legal immigration (which typically begins with an I-130 petition) is to unify families, but it can be a lengthy process (years or even decades). Furthermore, it’s possible that the petitioning relative could die before the visa is approved, and the petition would be automatically voided or revoked.

For example, spouses and children of legal permanent residents must wait approximately two years for their visa or Green Card approval, five years for unmarried children, and more than 12 years for siblings and married children. Furthermore, people born in countries such as China, the Philippines, India, or Mexico could wait up to 23 years.

If this applies to you, continue your visa application process if you are:

A principal or derivative beneficiary of Form I-130, Petition for Alien Relative (regardless of whether the petitioner was a US citizen or lawful permanent resident), and the petitioner has died.
A derivative beneficiary of Form I-130, Petition for Alien Relative (regardless of whether the petitioner was a US citizen or lawful permanent resident), and the principal beneficiary has died.
A derivative beneficiary of Form I-140, Immigrant Petition for Alien Worker, and the principal beneficiary has died.
A beneficiary of a pending Form I-730, Refugee/Asylee Relative Petition, and the petitioner has died.
A derivative asylee (AS-2 or AS-3), but the principal asylee (AS-1) has died.

If you can demonstrate that your primary residence at the time of your petitioning relative’s death was in the United States and is still in the United States, you may also benefit from the Section 204(I) relief for surviving relatives mentioned above.

US Citizenship and Immigration Services also specifies that you may benefit from this section if your relative died:

While forms such as I-130, I-140, or I-730 were pending.
After Forms I-130 or I-140 were approved.
While your Form I-485, Application to Register Permanent Residence or Adjust Status, was being processed.
While you were in T or U nonimmigrant status, but before filing Form I-485.
While you were in asylee status, before filing Form I-485.

The purpose of this relief is to offer an option to beneficiaries who are in humanitarian reinstatement status. This consists of a petition to substitute another family member, known as a substitute sponsor, for the deceased petitioning family member. This will allow you to continue your immigration process.

For example, in this hypothetical case: José, a US citizen, filed Form I-130 for Nelson, his 24-year-old unmarried son, in El Salvador in 2014. The I-130 was approved in 2015, but in 2018, José obtained approval abroad. Nelson has always resided in El Salvador, and after José’s death, the I-130 petition was automatically revoked. After this, Nelson would need to apply for humanitarian reinstatement of the I-130 petition and find a substitute sponsor. After filing the HR application with the local office that adjudicated the I-130 petition, his case will go through the consulate when his priority date becomes effective.

An immigration attorney can help you select a substitute sponsor. The sponsor must not only meet the same requirements as the original petitioner but must also reside in the United States and demonstrate financial support.

It’s important to know that humanitarian reinstatement is a discretionary measure, meaning several factors are considered in deciding whether to grant it.

Why hire a lawyer trained in this area?

Many people want to make a new life in the United States, but it’s important to keep in mind that this is a long process that, without the necessary assistance, can be complicated and have serious consequences. Depending on the situation you’re facing, especially if it’s immigration for humanitarian reinstatement, it’s important to hire the services of a lawyer specializing in this area. This professional will advise you on what you should do while the process unfolds.

The attorneys at Kannan Law are licensed in several locations, including the state of California. They offer personalized service regarding immigration, criminal law, and car accident cases. Contact us today if you’re looking for immigration advice in California to begin discussing your case.

Frequently Asked Questions

What happens to the I-130 petition if the petitioner dies?

If the petitioner dies, the I-130 petition is automatically revoked. However, there are options such as humanitarian reinstatement or relief under Section 204(l), depending on the beneficiary’s situation and whether they meet certain requirements.

What are the requirements for a widow or widower of a US citizen to continue their immigration process?

The widow or widower must file an I-360 self-petition within two years of the death of the US citizen spouse. They cannot have remarried and must meet the eligibility requirements to adjust their status or apply for an immigrant visa.

Who can benefit from relief under Section 204(l)?

Surviving relatives who held an I-130, I-140, I-730 petition, or a U or T nonimmigrant visa may benefit, provided the petitioner or principal beneficiary is deceased. Additionally, the petitioner must have resided in the US at the time of death and continue to live in the country.

What is humanitarian reinstatement, and who can apply for it?

It is a discretionary request to allow an approved I-130 petition to remain valid after the petitioner’s death. Principal or derivative beneficiaries of an I-130 petition may apply if they can demonstrate that they had their primary residence in the US at the time of the petitioner’s death.

What documents are required to apply for Section 204(l) or humanitarian reinstatement?

Essential documents include the petitioner’s death certificate, proof of the petitioner’s US residency, receipt and approval of the original petition, and, in some cases, an affidavit of support from a substitute sponsor.