INS on Substitute Sponsors for FB Cases
Posted Dec 20, 2002

We are pleased to share a recently released INS Memo, which provides some helpful guidance on the interpretation of the Family Sponsor Immigration Act of 2002. This Act was signed into law on March 13, 2002. Johnny N. Williams, Executive Associate Commissioner in the Office of Field Operations at INS had issued a Memo on INS’ interpretation of certain provisions under this law on June 15, 2002. However, this Memo was only released recently. This law basically provides that another petitioner in a family-based (FB) case may file a substitute Affidavit of Support as the sponsor, if the original I-130 sponsoring relative has died.

Background

Under current law, a foreign national who seeks permanent residence via family sponsorship is inadmissible to the U.S. unless the petitioning sponsor submits a Form I-864 (Affidavit of Support), demonstrating that the petitioner will be able to financially support the foreign national. Inadmissibility is a term used to describe those categories of persons not allowed to enter the U.S. Even if a person is physically within the U.S., s/he may not adjust status to permanent residence if s/he is inadmissible.

The particular inadmissibility category involved with the Affidavit of Support is referred to as the "public charge provisions." Individuals who are likely to become a burden to the U.S. are inadmissible. It is required that Form I-864 be filed in each family-based immigration case and in some employment-based cases to overcome this ground of inadmissibility.

Under prior law, the Form I-864 had to be signed by the petitioning relative, without exception. This is still the case, except for the change put into place for instances when the petitioner is deceased. If the relative is living, even if that relative does not have sufficient income or assets to meet the public charge requirements, s/he still has to submit the form. In such cases, there were still some alternative ways to obtain an approval. However, even a penniless petitioner is required by law to submit the form on behalf of the foreign relative.

This requirement rendered meaningless the concept of the "humanitarian exception" or "humanitarian reinstatement." The humanitarian concept provides an exception to the general rule that an approved I-130 is automatically revoked upon the death of the petitioner. Generally, the case is considered terminated if the petitioning relative dies. There is an exception to this rule if the INS is satisfied that there are humanitarian considerations to reinstate the underlying I-130 Petition (Petition for Alien Relative). However, since an Affidavit of Support signed by the petitioner was previously needed in each and every case by law, this presented an impossible obstacle in those instances of a deceased petitioner. The Family Sponsor Immigration Act of 2002 addressed this "glitch" in the law, by allowing certain other relatives to substitute for the petitioning sponsor on the Form I-864.

Qualifying Relatives for Filing the I-864

In the June 15, 2002 Memo, Mr. Williams provides an interpretation of how the law has changed for family-based immigrants as of March 13, 2002. Mr. Williams verifies that the new law permits the foreign national's spouse, parent, mother-in-law, father-in-law, sibling, child who is at least 18 years of age, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian to become a substitute sponsor if a family-based visa petitioner dies following the approval of the I-130 petition but before the foreign national obtains permanent residence.

Humanitarian Reinstatement Possible under Certain Conditions

Unfortunately, there is no provision for a substitute sponsor if the I-130 is not approved prior to the original sponsoring relative’s death. Even if the I-130 has been approved, Mr. Williams has instructed INS offices that reinstatement of the application to adjust status is not automatic but continues to be a matter of discretion. INS must continue to determine whether "humanitarian reinstatement" is appropriate based on the individual facts of the case. The Memo suggests that a major factor to consider is whether "failure to reinstate would lead to a harsh result contrary to the goal of family reunification."

INS Interpretation of Effective Date

Mr. Williams recognizes that the law became effective upon enactment and further specified that the law should be applied to cases in which the visa petitioner died before, on, or after March 13, 2002. Further, he specifically states that the law applies to pending cases, as well as to cases filed on or after March 13, 2002.

For cases in which the visa petitioner died before March 13, 2002, Mr. Williams has indicated that the foreign national must formally request the INS to reinstate the petition and simultaneously file the I-864 from the substitute sponsor. If INS made a final decision denying adjustment prior to the enactment of this law, the Memo instructs the INS to favorably consider a properly filed motion to reopen and to consider enactment of the Family Sponsor Immigration Act of 2002 as a sufficient reason for not meeting the usual 30-day deadline for the motion to reopen. The motion should include a substitute sponsor's I-864 and the filing fee required for a motion to reopen.

Conclusion

Although it cannot provide a solution to every potential immigration problem that may arise when a family petitioner dies, this law and INS' interpretation of it provide some foreign nationals with a ray of hope to continue their cases even when the original sponsor of their I-130s has died. It should again be noted that this substitution pertains only to the affidavit of support. In order to be eligible under the law, it is necessary that the I-130 be filed by a qualifying relative petitioner and approved prior to his/her death. Additionally, the beneficiaries must demonstrate to the satisfaction of the INS that the case should continue for humanitarian reasons, notwithstanding the original sponsoring petitioner's death. We at The Law Office of Sheela Murthy, P.C. are happy to share this helpful information with MurthyBulletin and MurthyDotCom readers. Those who may need assistance with a request for reinstatement or who need to file a motion to reconsider with the INS may wish to consult an experienced and qualified immigration law attorney to determine whether and how to file the Motion to Reopen the I-485 application. If you do not have an attorney, you may be interested in information on consulting with an attorney at our Office or in hiring The Law Office of Sheela Murthy for your case.