When the petitioner files a family petition to bring in a family member, it sometimes takes many years for the visa number to become current and for the beneficiary to come to the U.S. as a lawful permanent resident.
Some petitions such as the fourth preference petition can actually take nearly 25 years to become current prior to the beneficiary being able to come into the U.S. as a Lawful Permanent Resident. Countries such as the Philippines, Mexico, India and China have very large backlogs depending on the preference of the petition and when it was filed.
Normally when a petitioner dies, so does the petition. This means even if you have waited 20 years and on the 19th year, the petitioner dies, you cannot immigrate. This does not matter if the Consulate sends you the paperwork to continue. They simply do not know the status of the petitioner. Therefore, in these cases you have to do a Humanitarian Reinstatement in order to proceed forward and in order to try to get the petition ‘reinstated’.
A Humanitarian Reinstatement is not automatic. Many people think that just because they send in the papers for a substitute sponsor that the Humanitarian Reinstatement will be granted. This is not further from the truth. Rather, it is a purely discretionary decision and only if the officer is properly convinced will the Humanitarian Reinstatement be granted.
The Humanitarian Petition itself consists of an attorney cover letter (assuming you retain an attorney to do this) along with declarations, affidavits, evidence and supporting documents. All of these items put together will hopefully convince the officer to approve the Humanitarian Reinstatement. It normally takes around six months to one year to get the decision back from Immigration. If it is approved, the petition would go forward as though the petitioner did not die.
At a minimum, there will need to be a substitute sponsor so that the beneficiary does not become a public charge. This substitute sponsor would be an eligible family member who makes sufficient money to be able to properly sign the affidavit of support and to give all the supporting financial documents to prove that the beneficiary will not become a public charge and will not need to go on government assistance.
If the Humanitarian Reinstatement is approved, then it is not only an approval for the beneficiary, but rather, the spouse of the beneficiary and children who are unmarried and who are under 21 years old. Thus, with one single approved Humanitarian Reinstatement, the number of peoples lives who will be changed is considerably more than just the life of the beneficiary.
If there was more than one I-130 petition, then a Humanitarian Reinstatement must be filed for each and every beneficiary. The reason is that each case is different and one beneficiary might meet the hardship requirements while another beneficiary may not be able to meet those hardship requirements. Either way, for example, if a father petitioned two sons and a daughter, then three Humanitarian Reinstatement petitions must be done.
What happens after the Humanitarian Reinstatement is granted (assuming it is granted)? You can proceed forward with the Consulate Processing assuming the beneficiary or beneficiaries are outside the U.S. However, it does not erase the possibility of needing a Waiver if such a situation exists. Therefore, if the beneficiary has a criminal history or committed fraud, the that Waiver must still be prepared and submitted.
Sometimes the I-130 petition is pending for so long that one of the beneficiaries might have been a child when the petition was originally filed, but then is over 21 when the petitioner died and before the visa became current. In that case, there still might be a possibility that the beneficiary child could come into the U.S. However, it would need to be determined if the child (now an adult), qualifies as a ‘child’ under the CSPA.
There are no official forms for the Humanitarian Reinstatement. Rather, it is a petition that must be put together to argue all the equities and the hardships that will occur if the Humanitarian Reinstatement is not approved. Each case is different and each reviewing officer is different. Thus, it must be done to the best possible petition that can be done. Our American Immigration Law Firm does Humanitarian Reinstatements all over the world.
There is no time limit upon which to file and prepare the Humanitarian Reinstatement. Rather, it can be done the moment that the beneficiary dies up until years later. However, the longer you wait, the more difficult it is to get approved.
There is actually an exception to when you need to file the Humanitarian Reinstatement. In fact, the petition does not terminate under the situation where the beneficiary is inside the U.S. now and was inside the U.S. when the beneficiary died. In that case, the petition goes forward an an adjustment of status can be filed without ever filing a Humanitarian Reinstatement.