Humanitarian Reinstatement: Petitioner Dies, Beneficiary Has an Approved Petition

A. The Limitations of Humanitarian Reinstatement 

For many years, the only relief available for petitioners in cases where the petitioner died was a discretionary mechanism under a USCIS regulation which gives the agency discretion to decide not to revoke an approved petition upon death for “humanitarian reasons.” This limited relief can only be requested by the principal beneficiary of an approved petition, thus it is not a possible remedy for someone whose long pending petition had not yet been approved, nor can it provide a remedy for derivatives of a principal beneficiary. USCIS treats this as an entirely discretionary request, and denials cannot be challenged by appeal.

B. How to Request Humanitarian Reinstatement 

USCIS directs applicants to request humanitarian reinstatement by letter to the office that approved the petition, as no USCIS form exists for this purpose. Because some USCIS offices will not entertain repeated requests for humanitarian reinstatement, it is particularly important to file the initial request with all the supporting evidence that USCIS requests. After the death of petitioner, wait to file the request until the substitute sponsor’s affidavit of support and the humanitarian documentation can be gathered, as well as the identifying information about the underlying petition and the petitioner’s death certificate. The specific documents to include are described below. Persons requesting humanitarian reinstatement are subject to the affidavit of support requirement and should include a Form I-864, Affidavit of Support from a substitute sponsor, (or an I-864W, Affidavit of Support Exemption), since the petitioning relative has died and can no longer provide an affidavit of support. In addition, applicants should include documentation showing that they warrant a favorable exercise of discretion. 

Humanitarian reinstatement requests should also include a copy of or identifying information about the underlying petition, the receipt and approval notice, the name of applicant and the deceased petitioner, any A-numbers for applicant or decedent, and the petitioner’s death certificate. In addition, an individual requesting humanitarian reinstatement should provide evidence of the following to support favorable discretion: 

• Impact on family living in the United States, especially U.S. citizens, lawful permanent residents, and others lawfully present; • Advanced age or health concerns; 

• Ties or lack thereof to the home country;

• Other factors such as unusually lengthy government processing delays; and 

• Any other factors that weigh in favor of reinstatement.

In practice, the factors different USCIS offices weigh in adjudicating reinstatement can vary because the requests are solely within USCIS’s discretion.

Humanitarian reinstatement processing can be unpredictable and take a long time, due to problems arising from the lack of a standardized form and confusion on the part of both USCIS and applicants over which USCIS office has jurisdiction over a particular humanitarian request.

Unrepresented applicants sometimes have difficulty submitting requests that USCIS deems complete and approvable, and a partially documented request may be denied, rather than receive a request for further evidence. After a denial, some USCIS offices will not permit subsequent requests for reinstatement without the filing of a motion to reopen, I-290B, with the required fee, submitted within 30 days of the USCIS decision.47 Since it may take months for an applicant to gather necessary documentation of humanitarian grounds and the I-864 Affidavit of Support, and there is no appeal from denial of humanitarian reinstatement, this means some potential applicants lose the opportunity to request reinstatement.

MORE INFO:

USCIS Web Page, “Humanitarian Reinstatement,” https://www.uscis.gov/greencard/humanitarian-reinstatement

USCIS, AFM, Chapter 21.2(h)(2)(C)