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Substitution on I-130 after Death of Petitioner
INA § 213A(f)(5)(B) allows certain family members to act as "substitute sponsors"If AFTER approval of the visa petition, but BEFORE the relative obtains Lawful Permanent Residency. There is no authority to approve the visa petition after petitioner's death
Allowance for substitution is a matter of discretion and depends on the facts of each case
The Sponsor may be substituted if:
- Petitioner is dead
- USCIS reinstates the original petition for humanitarian reasons (see below)
- The substitute is related in one of the following ways: spouse, parents, mother-in-law, father-in-law, sibling, child (if older than 18), son, daughter, son-in-law, daughter-in-law, sister-in-law, grandparent, grandchild or legal guardian
Humanitarian Reinstatement of the I-130
8 C.F.R. § 205.1(a)(3)(i)(C) says that it is "inappropriate" to revoke a petition where humanitarian factors are present
There is no guidance on what constitutes "humanitarian factors". Factors that are likely to be considered are health factors, lengthy residence in the United States, attachment to the community, presence of other family members in the United States and conditions in the home country
USCIS examples of "humanitarian situations are: 1) where the original petitioner died prior to the person receiving an immigrant visa or was unable to adjust status due to a long wait in a preference category with tremendous backlogs; and 2) if there is one family member (out of many) who has been unable to immigrate because of petitioner's death. Motion to Reinstate must include the following:
- Death certificate of the Petitioner
- I-797 Notice of Approval of the I-130
- Declaration from the Beneficiary detailing the humanitarian factors in the case touching on the following factors; 1) length of time spent in the United States; 2) the relationship to the Petitioner; 3) any economic or other hardship factors that would be experienced upon return to the home country; 4) family members who currently live in the United States as opposed to those who remain in the home country; 5) social adjustment to life in the United States including community ties (i.e. religious community, neighborhood involvement, long-term employment, etc.); 6) physical, mental or other health-related problems the beneficiary or other family members have; 7) the beneficiary's age; 8) proficiency in English; 9) evidence of good moral character; and 10) absence of immigration violations
- Substitute I-864 Affidavit of Support from family member (from the list above)
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