Family Sponsor Immigration Act of 2002
(Public Law 107-150, March 13, 2002)
On March 13, 2002, the Family Sponsor Immigration Act of 2002, was signed into law, effective immediately. This article provides an analytical overview of this statute with some practical procedural guidance.
Initially it will be helpful to understand the background that prompted the passage of this law. Prior to March 13, 2002, in all family-based immigrant visa petitions, the relative petitioner must continue to survive up to the end of the process, and submit all necessary sponsorship papers to enable the sponsored relative(s) to immigrate to the United States. For, if the petitioner died at any time while the process remained incomplete, the law declared that the immigrant visa petition then stood cancelled or revoked as of the time of petitioner's death. Prior to March 13, 2002, there was no way for the sponsored relative to immigrate to the United States through such a cancelled or revoked petition.
The U.S. Congress realized that this result caused miseries in very many cases and frustrated a primary goal of the U.S. immigration laws, which is to unite family members. For example, when a petitioning father dies but the mother and other close relatives (sons, daughters, etc.) are all living in the United States, to prevent the remaining sponsored son or daughter from immigrating and joining other family members only because the petitioning father died, seems quite improper and unjust, not to mention that it could possibly ruin the hopes and aspirations of all family members. This is particularly true if he or she is the only relative remaining outside and hoping to join other family members in the United States. At last the U.S. Congress came to the rescue and passed the Family Sponsor Immigration Act, which was signed into law by the U.S. President on March 13, 2002.
The Statutory Provision
This law essentially permits substitution of any alternative close family sponsor in case of death of a petitioning relative. The immediate question is who can be an alternative close family sponsor in such a situation. The law provide a clear answer by explicitly listing the various relatives, which include the following: (1) spouse, (2) parent, (3) mother-in-law, (4) father-in-law, (5) sibling, (6) child (if at least 18 years of age), (7) son, (8) daughter, (9) son-in-law, (10) daughter-in-law, (11) sister-in-law, (12) brother-in-law, (13) grandparent, or (14) grandchild, or (15) a legal guardian of the sponsored alien. Indeed, any one from this list could become an alternate sponsor. It also necessarily means that no one else can possibly fill that role.
There are some basic conditions for the operation of this law and for an alternate sponsor to fill that role. First, the petitioning relative must have died after the approval of the petition. In other words, if the death occurs before the petition is approved, this law does not apply, and the alien relative cannot derive any benefit even if there is a close relative from the above list who is willing to become an alternate sponsor. Indeed, the INS has declared that it has no authority to approve a visa petition following the petitioner's death.
Second condition is that, assuming the petitioning relative dies after the approval of the petition, any close family member from the above list must execute an affidavit of support for the sponsored alien and demonstrate the means to maintain an annual income equal to at least 125 percent of the Federal poverty line. Such an alternate sponsor must submit, among other papers, the last three years of income tax returns, a statement of his/her bank, and a letter from his/her employer.
Third, the Attorney General of the United States has to make a determination that for humanitarian reasons revocation of the immigrant petition would be inappropriate in a given case and therefore reinstates the petition. This language requires some explanation.
INS regulations provide that the approval of a petition is automatically revoked as of the date of the approval under certain circumstances. Death of the petitioning relative is one such circumstance or event that triggers an automatic revocation (unless the Attorney General determines in his or her discretion that for humanitarian reasons revocation of the petition would be inappropriate). See 8 CFR § 205.1(a)(3)(i)(C). Such automatic revocation instantly nullifies the approval. While the Family Sponsor Immigration Act provided a much desired relief in that situation, still it requires that the Attorney General has to first determine that in a given case for humanitarian reasons revocation of the immigrant petition would be inappropriate, and then reinstate the petition. This in turn raises a couple of questions. One, whether it is easy or difficult to have the Attorney General make such an affirmative determination, and second, as a practical matter how does one go about getting a favorable determination.
Some Practical Concerns
Initially when the Family Sponsor Immigration Act was passed into law, there was a concern based on past experiences that what was legally given by Congress on the one hand may have been taken away or practically nullified on the other hand by requiring a determination of the Attorney General to declare that humanitarian reasons make a revocation inappropriate. In the past, it was quite difficult to get a similar determination under the long existing language of 8 CFR § 205.1(a)(3)(i)(C). However, both concerns were simultaneously allayed by an INS memorandum issued by the Executive Associate Commissioner of the INS's Office of field Operations, dated June 15, 2002. While it is a long, 3-page memorandum, the relevant language for our purpose, to allay any concern about implementation, declares that in all such cases a sponsored alien may utilize the provisions of the new law by formally requesting the INS to reinstate the petition, submitting an affidavit of support on Form I-864 with a substitute sponsor, and simultaneously demonstrating that he or she has a substitute sponsor that meets the standard income requirements and that the substitute sponsor is related to the alien in one of the prescribed ways.
The net effect of the new law and INS's implementing memorandum is that one may expect to get a favorable determination fairly easily by filing a request for reinstatement of the original petition, together with necessary affidavit of support and other supporting documentation (tax returns, bank statement and employment letter) with any service center that has jurisdiction over the original petition. Also, there is no prescribed form for filing such a request, which can therefore be on a plain sheet of paper with all the identifying information such as the original file number, date of original filing and approval, the date of petitioner's death, and the proof of qualifying relationship with the substitute sponsor.
The INS has also recognized that there may be cases in which the INS may have made a final decision denying adjustment of status of an alien. The memorandum declares that in all such cases, the alien may file a motion to reopen with a filing fee, and the INS should favorably consider such a motion. Indeed, it declares that the enactment of the Family Sponsor Immigration Act is a sufficient reason for filing the motion even beyond the normal limitation of 30 days after the decision.
Finally, the new law applies regardless of whether petitioner's death occurred before, on, or after the date of the enactment of this Act. However, in the case of a death occurring before March 13, 2002, it applies only if: (1) the sponsored alien -(A) requests the Attorney General to reinstate the petition that was filed by the deceased petitioner and approved before such death, and -(B) demonstrates that he or she is able to satisfy the public charge provisions under § 212(a)(4)(C)(ii) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(4)(C)(ii)), as amended; and (2) the Attorney General reinstates such petition after making the determination that humanitarian reasons make a revocation of the petition inappropriate.
About The Author
Pravinchandra J. Patel, Esq. can be reached at 1554 Sherwood Drive, East Meadow, New York 11554; Tele: (516) 565-2665; Fax: (516) 485-4227; Email: LRBPJP@aol.com . For over two decades, he has authored and regularly updated source material for fellow immigration attorneys through his immigration books, including the seminal resource, Patel's Citations of Administrative Decisions under Immigration and Nationality Laws, and The Whole Act (INA), Annotated. The opinion expressed in this article is not intended to provide advice or guidance in any specific case or to any individual. Rather, it is intended for general information and preliminary guidance.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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