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)

Exceptions to Being Admitted or Parole VAWA & INA 245i SIJS See INA 245(h)(1), which states that SIJ-based applicants are considered paroled into the United States for purposes of INA 245(a). Special immigrant juveniles (SIJ) and other special immigrants are not exempt from this requirement. However, statutory provisions expressly state that these special immigrants are considered paroled for adjustment eligibility purposes. Accordingly, the beneficiaries of approved SIJ petitions meet the inspected and admitted or inspected and paroled requirement, regardless of their manner of arrival in the United States. See INA 245(g), which holds that certain special immigrants, as defined under INA 101(a)(27)(k), are considered paroled into the United States for purposes of INA 245(a).

AOS Statute INA 245(a) Adjustment of Status Eligibility Requirements The applicant must have been: The applicant must properly file an adjustment of status application. The applicant must be physically present in the United States. The applicant must be eligible to receive an immigrant visa. An immigrant visa must be immediately available when the applicant files the adjustment of status application. and at the time of final adjudication. The applicant must be admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief. The applicant merits the favorable exercise of discretion. §1255. Adjustment of status of nonimmigrant to that of person admitted for permanent residence (a) Status as person admitted for permanent residence on application and eligibility for immigrant visa The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. (b) Record of lawful admission for permanent residence; reduction of preference visas Upon the approval of an application for adjustment made under subsection (a), the Attorney General shall record the alien’s lawful admission for permanent residence as of the date the order of the Attorney General approving the application for the adjustment of status is made, and the Secretary of State shall reduce by one the number of the preference visas authorized to be issued under sections 1152 and 1153 of this title within the class to which the alien is chargeable for the fiscal year then current. (c) Alien crewmen, aliens continuing or accepting unauthorized employment, and aliens admitted in transit without visa Other than an alien having an approved petition for classification as a VAWA self-petitioner, subsection (a) shall not be applicable to (1) an alien crewman; (2) subject to subsection (k), an alien (other than an immediate relative as defined in section 1151(b) of this title or a special immigrant described in section 1101(a)(27)(H), (I), (J), or (K) of this title) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 1182(d)(4)(C) of this title; (4) an alien (other than an immediate relative as defined in section 1151(b) of this title) who was admitted as a nonimmigrant visitor without a visa under section 1182(l) of this title or section 1187 of this title; (5) an alien who was admitted as a nonimmigrant described in section 1101(a)(15)(S) of this title,1 (6) an alien who is deportable under section 1227(a)(4)(B) of this title; (7) any alien who seeks adjustment of status to that of an immigrant under section 1153(b) of this title and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 1324a(h)(3) of this title, or who has otherwise violated the terms of a nonimmigrant visa. (d) Alien admitted for permanent residence on conditional basis; fiancee or fiance of citizen The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 1186a of this title. The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 1101(a)(15)(K) of this title except to that of an alien lawfully admitted to the United States on a conditional basis under section 1186a of this title as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien’s nonimmigrant status under section 1101(a)(15)(K) of this title. (e) Restriction on adjustment of status based on marriages entered while in admissibility or deportation proceedings; bona fide marriage exception (1) Except as provided in paragraph (3), an alien who is seeking to receive an immigrant visa on the basis of a marriage which was entered into during the period described in paragraph (2) may not have the alien’s status adjusted under subsection (a). (2) The period described in this paragraph is the period during which administrative or judicial proceedings are pending regarding the alien’s right to be admitted or remain in the United States. (3) Paragraph (1) and section 1154(g) of this title shall not apply with respect to a marriage if the alien establishes by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place and the marriage was not entered into for the purpose of procuring the alien’s admission as an immigrant and no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition under section 1154(a) of this title or subsection (d) or (p) 2 of section 1184 of this title with respect to the alien spouse or alien son or daughter. In accordance with regulations, there shall be only one level of administrative appellate review for each alien under the previous sentence. (f) Limitation on adjustment of status The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 1186b