In the case where a petitioner passes away before a beneficiary is able to immigrate, the I-130 is normally cancelled. Under certain circumstances, the case may still continue through approval of a humanitarian reinstatement request. These requests, unfortunately, are not automatically granted. There must be a strong demonstration of humanitarian factors that would warrant USCIS reinstating the cancelled petition with the original priority date. Furthermore, even if those grounds can be shown, there must also be a Substitute Sponsor waiting in the wings who is ready, willing, and financially able to incur the obligations involved with the I-864, Affidavit of Support.
Who Can Serve As A Substitute Sponsor?
It is commonly misunderstood that anybody can step in to fill out the Affidavit of Support on behalf of the intending immigrant. However, the regulations are very specific as to who is eligible to serve as a Substitute Sponsor. According to the revised I-864 instructions,
The substitute sponsor must be related to the intending immigrant in one of the following ways: spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years of age), son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild, or legal guardian. The substitute sponsor must also be a U.S. Citizen, lawful permanent resident, or U.S. National.
Accordingly, uncles, aunts, nephews, and nieces would not qualify to take over the affidavit of support. (Interestingly, though, a Joint Sponsor does not need to be related to the petitioning sponsor or intending immigrant.) Additionally, if the proposed sponsor is not a US citizen or green card holder, he/she would also be disqualified. In some cases, for example, an individual might be here long term on an H-1B or L-1; unfortunately, that person would not be eligible.
Obligations of a Substitute Sponsor
Whoever serves as a substitute sponsor is incurring the same obligations that the primary petitioner or sponsor would have taken on. This means that the individual is signing a contract with the US government to ensure that the intending immigrant does not become a public charge. The sponsor is verifying that he/she has enough financial resources or sufficient income to maintain the intending immigrant at 125 percent of the Federal Poverty Guidelines. He/she is also contractually agreeing to be jointly and severally liable to reimburse the federal government if the immigrant takes certain "means tested" benefits. Obviously, these are very serious obligations that any individual should consider before proposing to serve as a substitute sponsor, as his/her role does not end with the reinstatement of the petition or the grant of the intending immigrant's visa.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the "Subscribe To This Blog's Feed" button on the left. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the "Case Evaluation" box to the right of the screen to get in touch with one of our attorneys.