New proposed bill would allow substitute sponsors for affidavit of support of dead petitioners

What happens if a petitioner dies while a beneficiary is waiting for the priority date on their petition to be current?

Under present law, if the petitioner dies while the petition or application is pending, the petition is "automatically revoked", unless the Immigration and Naturalization Service (INS) reinstates the petition due to humanitarian or family reunification reasons. However, even if INS grants "Humanitarian Revalidation", the law still requires that the petitioner submit an affidavit of support. But how can a petitioner sign an affidavit of support, if the petitioner is already dead?

Under existing law, even if INS grants Humanitarian Revalidation, the green card is nevertheless eventually denied because the deceased petitioner can no longer sign the affidavit of support. Unless this contradiction in the law is amended, Humanitarian Revalidation is meaningless.

There is now hope and good news for people caught in this situation. On June 26, 2001, the House Judiciary Committee unanimously approved the proposed Family Sponsor Immigration Act of 2001 (known as H.R. 1892), which would allow immigrants to use another sponsor on their affidavit of support, if their original US sponsor dies and the petition is revalidated by INS.

This new bill, which is being supported by lawmakers from both the Democratic and Republican parties, would allow another family member to stand in for the deceased sponsor and execute the affidavit of support.

However, I must emphasize and remind readers that this is a proposed law that has not yet been approved by the entire House, and still has to be deliberated in and approved by the Senate, and signed into law by President Bush. You should not go ahead and submit an affidavit of support signed by substitute sponsor, until the proposal becomes a law. It is not yet a law.

Under the proposed bill, family members allowed to step in and sign the affidavit of support include spouses, parents, children, brothers or sisters, and legal guardians. The bill also broadens the definition of family members to include in-laws, allowing them to petition as well. Later, the Judiciary Committee added grandparents and grandchildren to the list of whose who can sign affidavits of support.

Also included for consideration by the House is a substitute amendment adopted by members of a judiciary subcommittee, clarifying that the bill would apply retroactively, meaning INS will re-examine cases involving potential immigrants who abandoned their green card applications years ago after their sponsors died. The amendment also sought to allow people as young as 18 to sign financial support affidavits.

The bill now proceeds to the floor of the House, where it is expected to be approved.

If the bill finally becomes law, this will relieve many green card applicants whose petitioners have died, or whose petitioners are now old and sickly and could die before the approval of their green cards. We will keep our readers updated on developments.

Michael J. Gurfinkel has been a licensed attorney in California for 21 years. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also an active member of the State Bar of California, the American Immigration Lawyers Association, and the Immigration Section of the Los Angeles County Bar Association. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar.

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