US citizens and lawful permanent residents may petition their relatives for a green card. Visa numbers are immediately available to immediate relatives namely spouses, parents and unmarried children of US citizens so that the process will be relatively quick.
However, beneficiaries who are not immediate relatives could face lengthy backlogs. Because of the lengthy wait times, it is possible for the petitioner to pass away between the time of the I-130 Petition for an Alien Relative and the availability of a visa number. Since as a rule, the death of the petitioner results in the death of the petition all together, this situation results in the revocation of the approved I-130 petition. For many foreign nationals, this could mean the end of their dream to live in the United States.
The good news is that the United States Citizenship and Immigration Services (USCIS) grants the USCIS director the discretion to reinstate the I-130 petition through humanitarian reinstatement. It is worth noting though that this form of relief is only available and may only be requested by the principal beneficiary of an approved I-130 petition. If the petitioner died before or pending the approval of his petition, this form of relief will not be granted.
There is no form or fee required to ask for this relief. You need to make a written request addressed to the USCIS office that originally approved the I-130 petition.
In your request, you need to state your name as well as the deceased petitioner’s name. Make sure to include the receipt number of the approved petition, your’s and your deceased relative’s alien registration number, if you have one, death certificate of the deceased relative, and you need to have a substitute sponsor. Your substitute sponsor has to be a US citizen or a lawful permanent resident, at least 18 years of age and must be any one of the following: your spouse, parent, mother-in-law, father-in-law, sibling, child, son-in-law, daughter-in-law, sister-in-law, brother-in law, grandparent, grandchild, or legal guardian. You need to submit an I-864 (Affidavit of Support) from the substitute sponsor.
Given that this is also a discretionary relief on the part of the director, you need to show in your request that a favorable exercise of said discretion is warranted due to any one of the following factors: disruption of the family unit, advanced age or health concerns, lawful residence in the US for a lengthy period of time, ties or lack thereof to the home country, other situations like long government processing timelines and procedural delays, among others. You need to make sure that these factors will be backed up by evidence to lead the director to decide in your favor.
In 2009, Congress passed a law that provides great relief to I-130 beneficiaries already present in the United States at the time of the petitioner’s death. These beneficiaries may have their pending visa petition and adjustment of status application approved if they are surviving relatives under the law and they meet the residence requirement. In these cases, the petition does not die with the petitioner, so to speak.
The deceased qualifying relative may be the petitioner or the principal beneficiary in a family-based immigrant visa petition, the principal beneficiary in an employment-based visa petition, the petitioner in a refugee/asylee relative petition, the principal alien admitted as a T or U nonimmigrant, or the principal asylee who was granted asylum.
Furthermore, the surviving relatives must have resided in the United States at the time of the petitioner’s death, and continue to reside in the United States. For purposes of this law, “residence” need not be lawful US residence.