The substitute sponsors include spouse, parent, mother-in-law, father-in-law, brother or sister, child, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.
Family based petitions and some employment-based petitions (where a relative owns a 5% interest in the petitioning company) require the petitioner to submit an affidavit of support (Form I – 864) in order for the beneficiary to adjust status or obtain an immigrant visa.
The petitioner must be domiciled (or living) in the US to submit the affidavit of support. If the petitioner is living outside the US (such as an elderly US citizen parent now retired to the Philippines), he cannot submit an affidavit of support, and the beneficiary will not be able to obtain a green card.
In some cases, the petitioner may have passed away after the petition was approved. In those cases, the beneficiary must seek humanitarian reinstatement. If the beneficiary was in the US when the petitioner passed away, he can rely on the “Survivor Law” (Section 204(l)) in lieu of the more difficult and burdensome humanitarian reinstatement.
However, the beneficiary would still be required to submit an affidavit of support by a “substitute sponsor”, who are certain US citizens or lawful permanent resident relatives, at least 18 years of age, and domiciled in the US. The substitute sponsors include spouse, parent, mother-in-law, father-in-law, brother or sister, child, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian. (A legal guardian is a court-appointed representative, where the beneficiary is a minor or mentally incompetent).
But what happens if a petitioner dies, and the beneficiary has none of the above relatives who can act as a substitute sponsor? In that case, the beneficiary may not be able to seek humanitarian reinstatement or benefit from the Survivor Law, since there is no qualified substitute sponsor who can submit an affidavit of support.
There is another provision of the affidavit of support law that provides that an affidavit of support is not required if, at the time the beneficiary seeks permanent residence, the beneficiary can show he or she has already worked, or can be credited with, 40 qualifying quarters of earnings, based on certified earnings records from the Social Security Administration. In other words, if a person has worked for at least 40 quarters (10 years), he or she may not be required to submit an affidavit of support by a substitute sponsor. (A person could also get credited with quarters earned by his/her parent when he/she is under 18, and by his/her spouse during the marriage (but only if still married to the same spouse or if the spouse is deceased).
If you are under petition, and you have issues/problems relating to the affidavit of support (i.e. your petitioner is not earning enough, the petitioner has died, you cannot locate a substitute sponsor, etc.), but you already have 40 qualifying quarters of earnings/coverage, you may not need an affidavit of support. If this applies to you, consult with an attorney, who can evaluate your situation, especially if the lack of an affidavit of support is the last hurdle to your obtaining a green card.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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