Public Law 107-150
Have your father applied for you now and wait for the petition to approved. Approval usually takes about 2 yrs. Once the petition is approved you still have chance to use that petition even something happens to your father. You will have your brother or sister substitue the sponser whom will sign the I-864 affidavit of support.
U.S. Department of Justice Immigration and Naturalization Service
HQADJ 70/21.1.13Office of the Executive Associate Commissioner 425 I Street NW Washington, DC 20536
June 15, 2002
MEMORANDUM FOR REGIONAL DIRECTORS
FROM: Johnny N. Williams /S/ Executive Associate Commissioner Office of Field Operations
SUBJECT: Policy Change -- Public Law 107-150, the Family Sponsor Immigration Act of
2002: Use of Substitute Sponsor if Visa Petitioner Has Died
I. Introduction
On March 13, 2002, the President signed Public Law (P.L.) 107-150, the “Family Sponsor Immigration Act of 2002.” P.L. 107-150 makes a significant change to the requirement
for certain aliens seeking permanent residence in the United States to obtain an Affidavit of
Support, (Immigration and Naturalization Service (INS) Form I-864) from their petitioner to
avoid inadmissibility as a public charge under Immigration and Nationality Act (INA) §
212(a)(4)(C).
Under INA § 212(a)(4)(C), an alien who seeks permanent residence as an immediate relative or family preference immigrant is inadmissible as an alien likely to become a public
charge unless the visa petitioner submits a Form I-864 that meets the requirements of § 213A.
This requirement also applies to employment-based immigrants, if a relative either filed the
Form I-140, Immigrant Petition for Alien Worker, or has a significant ownership interest in the
firm that did file the Form I-140.
Previously, INA § 213A(f)(1)(D) required the visa petitioner to be the sponsor who signed the Form I-864 filed on the alien’s behalf. INA § 213A(f)(5) allowed for a “joint
sponsor,” who accepted joint and several liability with the petitioning sponsor, if the petitioner
could not meet the income requirements of § 213A(a)(1)(A). In these cases, however, both the
petitioner and the joint sponsor had to sign and submit Form I-864 in order for the sponsored
alien to avoid inadmissibility under § 212(a)(4)(C).
The affidavit of support requirements of INA § 212(a)(4) and § 213A thus eliminated, as a practical matter, the use of the INS procedure of “humanitarian reinstatement” of a visa petition
revoked upon the death of the petitioner. 8 CFR § 205.1(a)(3)(i)(C) requires the revocation of an
approved visa petition upon the death of the petitioner unless the Attorney General determines
that, for humanitarian reasons, revocation would be inappropriate. However, since the
implementation of INA § 213A, humanitarian reinstatement served no purpose because the visa
Memorandum for Regional Directors Page 2 Subject: Policy Change-- Public Law 107-150, the Family Sponsor Immigration Act of
2002: Use of Substitute Sponsor if Visa Petitioner Has Died
petitioner, now deceased, could not execute a Form I-864. As a result, the alien became
inadmissible as a public charge, and, therefore, ineligible for permanent residence.II. Changes to INA § 212(a)(4) and § 213A As a Result of the Family Sponsor Immigration
Act of 2002
The Family Sponsor Immigration Act of 2002 remedies the situation of an alien whose petitioner has died by amending INA sections § 212(a)(4)(C)(ii) and § 213A(f)(5). The amended
§ 213A(f)(5) creates a way in which a person other than the visa petitioner can sponsor an alien.
Section 213A(f)(5)(B) now allows certain family members to become “substitute sponsors” if a
visa petitioner dies following approval of the visa petition, but before the alien obtains
permanent residence.
Section 213A(f)(5)(B)(i) specifically states that the visa petition must be approved prior to the death of the petitioner in order for the beneficiary to be eligible for permanent residence.
The INS has no authority to approve a visa petition following the petitioner’s death. Dodig v.
INS, 9 F.3d 1418 (9th Cir. 1993).
If, however, the visa petition was approved prior to the death of the petitioner, the Service, may, in its discretion, reinstate the petition for humanitarian reasons, [8 CFR
§ 205.1(a)(i)(C)]. Section 213A(f)(5)(B)(ii) explicitly places this determination of whether or
not to reinstate a petition in such circumstances with the INS, through the authority vested in the
Attorney General. The INS is not required in any given case to reinstate approval of a visa
petition. Reinstatement continues to be a matter of discretion, to be exercised in light of the facts
of each individual case, particularly those cases in which failure to reinstate would lead to a
harsh result contrary to the goal of family reunification.
Should the INS reinstate a petition following the death of the visa petitioner, § 213A(f)(5)(B) and § 212(a)(4)(C)(ii) now allow the use of a “substitute” sponsor to sign INS
Form I-864 and, if the sponsor meets the income requirements, allow the alien to obtain
permanent residence. A substitute sponsor may only replace the visa petitioner if the visa
petitioner is dead and if the INS reinstates the original petition for humanitarian reasons. Also,
substitute sponsors must be related to the sponsored alien in one of the following ways: as a
spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son,
daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild
or legal guardian.III. Effective Date of Changes
Public Law 107-150 was effective upon enactment. Section (2)(b) of the Family Sponsor Immigration Act of 2002 specifies, moreover, that the amendment applies to cases in which the
Memorandum for Regional Directors Page 3 Subject: Policy Change-- Public Law 107-150, the Family Sponsor Immigration Act of
2002: Use of Substitute Sponsor if Visa Petitioner Has Died
visa petitioner died before, on or after March 13, 2002. INS officers shall, therefore, apply the
amendment to pending cases, as well as to cases filed on or after March 13, 2002. In all cases
in which the death of the petitioner occurred after the date of enactment, March 13, 2002, a
sponsored alien may utilize the provisions of § 213A(f)(5)(B) and submit an I-864 with a
substitute sponsor if the INS reinstates the alien’s visa petition.
In cases in which the death of the petitioner occurred before March 13, 2002, the date of enactment, the alien must formally request the INS to reinstate the petition and simultaneously
demonstrate that they have a substitute sponsor that meets the requirements of INA § 213A.
Thus, the alien seeking to rely on the amendment should submit the substitute sponsor's properly
completed Form I-864 along with the request for reinstatement. If the Service reinstates the
petition, that alien may be considered for an immigrant visa or adjustment of status, provided
that the I-864 filed by the substitute sponsor meets the standard § 213A income requirements and
the substitute sponsor is related to the alien by one of the ways listed in section II above.
The INS is aware that some INS officers held in abeyance adjustment cases in which the visa petitioner had died, while Congress had Public Law 107-150 under consideration. The INS
can now complete the adjudication of those cases, once a substitute sponsor submits a properly
completed Form I-864.
There may be other cases in which the INS made a final decision denying adjustment of status. In those cases, the INS should favorably consider a properly filed motion to reopen, and
should consider enactment of Public Law 107-150 to be a sufficient reason for filing the motion
more than 30 days after the initial decision, [Cf. 8 C.F.R. § 103.5(a)(1)(i)]. Any motion should
include a substitute sponsor's properly completed Form I-864, as well as the filing fee established
in 8 C.F.R. § 103.7(b)(1).
The Office of Field Operations requests your assistance in disseminating this policy memorandum to your respective offices and ensuring its immediate implementation. Attachment
