When a petitioner dies after filing Form I-130, Petition for Alien Relative, an approved petition is revoked, and a pending one is no longer considered active. 8 CFR § 205.1(a)(3)(i)(C). Widow(er)s — the spouses of U.S. citizens — are protected because the I-130 converts automatically to either a pending or approved self-petition, Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant. 8 CFR §§ 205.1(a)(3)(i)(C)(1), 204.2(i)(1)(iv). Other beneficiaries may be able to reinstate the petition under either a statutory provision, INA § 204(l), if they are residing in the United States, or a regulatory one, 8 CFR § 205.1(a)(3)(i)(C)(2), if they are residing abroad. This article will review the procedures and required documentation for these two forms of reinstatement.

204(l) Reinstatement

Section 204(l) reinstatement requires the I-130 beneficiary to: (1) have been residing in the United States at the time of the petitioner’s death and continue to reside here; and (2) obtain a substitute sponsor who can file a Form I-864, Affidavit of Support Under Section 213A of the INA.

Substitute sponsors must be a family member who is either a U.S. citizen or lawful permanent resident (LPR), domiciled in the United States, and at least 18 years of age. They can be any of the following relatives of the beneficiary: spouse, parent, mother-in-law, father-in-law, sibling, child (between the ages of 18 to 21), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild. They can also be a legal guardian. INA § 213A(f)(5)(B). Beneficiaries who cannot secure a substitute sponsor will be unable to reinstate the revoked petition, even if they satisfy the other 204(l) requirements. However, the affidavit-of-support requirements are satisfied if the intending immigrant has earned or can be credited with 40 qualifying quarters under Social Security law or is a child who will be deriving citizenship under INA § 320.

If the petitioner died while the petition or application was pending, the beneficiary will simply notify U.S. Citizenship and Immigration Services (USCIS) of the death and request that the agency proceed with adjudication of the petition based on section 204(l). Send the request to the USCIS office where the petition is pending.

If the petitioner died after the petition was approved, the beneficiary will request that it be reinstated. The procedure depends on whether the beneficiary will be consular processing or adjusting status. In the first context, notify the National Visa Center (NVC) of the petitioner’s death and include a copy of the death certificate. Indicate that the immigrant visa applicant will be seeking reinstatement under 204(l). Then send the formal request to USCIS with the accompanied proof of eligibility for reinstatement. Once the petition is reinstated, the USCIS will send notification to the NVC, and the applicant will proceed with consular processing. In the second context, where the applicant will be applying to adjust status, include the request for reinstatement with Form I-485, Application to Register Permanent Residence or Adjust Status.

In all requests for 204(l) reinstatement, the beneficiary/applicant will include the following documentation:

• Copy of the death certificate;
• Copy of the I-130 approval notice;
• Proof of residence in the United States when the petitioner died and proof of continuous since that date, such as: employment or school records; rent, telephone, or utility bills; hospital or medical records; attestations by church, unions, or other organizations; money order receipts; passport entries; birth certificates of children born in the United States; bank accounts or insurance documents; Social Security or Selective Service card; automobile license receipt, title, or vehicle registration; deeds, mortgages, leases, or other contracts to which the beneficiary has been a party; and tax receipts; and
• Form I-864 from a substitute sponsor, along with proof of relationship to the sponsor and the most recent tax return. If the substitute sponsor has insufficient income, the applicant can include an I-864 from a joint sponsor at the adjustment or consular processing stage.

Section 204(l) also provides relief in situations where the principal beneficiary — not the petitioner — has died. In the past, when the principal beneficiary had died, either the derivatives were left without a basis for immigrating (e.g., derivative children in first-preference cases or derivative spouses and children in third- or fourth-preference cases), or the petitioner had to file a new petition for the child (second-preference cases). The statute now allows these derivatives “of the qualifying relative” in all the family-based preference categories to proceed unaffected by the principal beneficiary’s death.

USCIS retains the power to deny relief under section 204(l) when it determines that approval of the petition or application “would not be in the public interest.” The exercise of this discretion is non-reviewable. According to USCIS, only compelling negative discretionary factors would prevent the applicant from being granted relief.

USCIS interprets the statute as allowing the grant of a waiver of inadmissibility — even though the qualifying relative has died and there is obviously no extreme hardship to be suffered by the decedent — if the beneficiary meets the residence requirements of section 204(l). This applies to provisional waivers of unlawful presence for those who are consular processing as well as waivers for fraud or criminal convictions for those who are adjusting status. When adjudicating the waiver, USCIS will note that the qualifying relative has died, and the death will be “deemed to be the functional equivalent of a finding of extreme hardship.” This does not mean that the waiver will necessarily be approved. USCIS still retains the right to exercise its discretion in adjudicating waivers, even if extreme hardship is established.

Humanitarian Reinstatement

In cases involving death of the petitioner where the beneficiary cannot establish residency in the United States, the regulations contain an exception if the beneficiary establishes that it would be “inappropriate” to revoke the application based on humanitarian factors. 8 CFR § 205.1(a)(3)(i)(C)(2). This relief is available when the petitioner died after the petition was approved, and it requires a formal motion or request to reinstate the petition. It is also not available in situations where the principal beneficiary has died rather than the petitioner.

USCIS has indicated that the following factors would be considered in satisfying the test of inappropriateness:

• The impact of revocation on the family unit in the United States, especially on U.S. citizen or LPR relatives or other relatives living lawfully in the United States;
• The applicant’s advanced age or poor health;
• The applicant's having resided in the United States lawfully for a lengthy period;
• The applicant's ties to his or her home country; and
• Significant delay by the USCIS or the State Department in processing the case after approval of the petition and the priority number’s becoming available.

USCIS internal documents provide some examples of when humanitarian reinstatement should be granted: (1) where the petitioner died prior to the applicant’s receiving an immigrant visa, especially in preference cases where there was a long wait; or (2) if the applicant is the one family member out of many who has not yet immigrated.

In order to reinstate the I-130 petition, the beneficiary must file a formal motion or request, attach supporting documentation, and submit the motion to reinstate to the USCIS office that approved the petition. There is no fee for this type of motion. In all requests for humanitarian reinstatement, the applicant should include the following documentation:

• Copy of the death certificate;
• Copy of the I-130 approval notice;
• Form I-864 from a substitute sponsor, along with proof of relationship to the sponsor and the most recent tax return. If the substitute sponsor has insufficient income, the applicant can include an I-864 from a joint sponsor at the adjustment or consular processing stage; and
• Declaration from the applicant detailing the humanitarian factors in the case.

Documentation establishing the humanitarian factors might include any of the following:

• Proof of the bona fides of the relationship to the deceased petitioner;
• Proof of the applicant’s prior residence in the United States;
• Proof of relationship with other family members and their immigration/citizenship status;
• Proof of any health-related problems of the applicant, including a letter from the physician describing, in layman's terms, the applicant’s health;
• Proof of attachment to some local community and/or involvement in civic organizations in the United States; and
• Declarations from friends, religious leaders, employers, and others, describing the beneficiary’s good moral character and benefit to the community.

Practitioners have reported long adjudication times — several months and even years — for motions to reinstate with varied success. Given that there is no filing fee, there is no receipt notice or way to check the status of the request. Similarly, the USCIS does not post case processing times or report approval rates. If USCIS reinstates the I-130 petition, either based on section 204(l) or humanitarian factors, it will forward the reinstated petition to either the USCIS office adjudicating the adjustment of status application or the State Department’s National Visa Center or appropriate consular post.