State Dept. Issues Cable on New Affidavit of Support Law

IMMIGRATION LAW & POLICY

Affidavits of Support

State Dept. issues cable on new affidavit of support law
Immigrants' Rights Update, Vol. 16, No. 3, May 30, 2002

The U.S. State Dept. has issued a cable informing all the department's diplomatic and consular officers of the enactment of the Family Sponsor Immigration Act of 2001 (H.R. 1892). H.R. 1892 amends the Immigration and Nationality Act to allow the beneficiary of an immigrant visa petition to designate an alternate sponsor if the original petitioning sponsor dies before the beneficiary is able to immigrate. The new provision is applicable to cases in which the Immigration and Naturalization Service determines that humanitarian reasons exist for not revoking the immigrant visa petition. President George W. Bush signed the law on Mar. 13, 2002.

An enforceable affidavit of support is required of all persons who apply for a family-based immigrant visa or for family-based adjustment of status on or after Dec. 19, 1997. The affidavit is also required of employment-based visa applicants in cases where a relative of the applicant either filed the employment-based petition on behalf of the visa applicant or has a significant ownership interest in the entity that filed the petition. The enforceable affidavit is a contract requiring the person who signs it to maintain the immigrant at 125 percent of the federal poverty income level.

Prior to the enactment of H.R. 1892, if a petitioning relative died after the petition was approved but before the beneficiary immigrated to the U.S., the petition was automatically revoked unless the INS decided, for humanitarian reasons, not to revoke it. However, this humanitarian exception did not waive the requirement that the petitioner have filed an affidavit of support on behalf of the beneficiary, and for this reason many beneficiaries were not able to immigrate. The new law provides a remedy to this problem by allowing the beneficiary to substitute 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, grandchild, or legal guardian to serve as sponsor in place of the original petitioner who has died.

The law requires the new petitioner to meet all other requirements under INA section 213A(f)(1). Under these requirements, the petitioner must be a U.S. citizen, 18 years of age, and domiciled in a U.S. state, the District of Columbia, or any territory or possession of the U.S. In addition, the petitioner must demonstrate that he or she has the resources to maintain the intending immigrant at an annual income equal to at least 125 percent of the federal poverty level.

The Apr. 15, 2002, State Dept. cable informs all diplomats and consular posts that the law takes effect immediately and applies to all petitions where deaths have occurred before, on, or after the date of the enactment of H.R. 1892.