HUMANITARIAN BENEFITS: IS IT MANDATORY TO HAVE AN APPROVED I-130 & WHO COULD SIGN AN AFFIDAVIT OF SUPPORT?

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Introduction



There are three different types of Humanitarian Benefits related to Form I-130, Petition for Alien Relative: Conversion of Form I-130 to Form I-360 for Surviving Spouses; Section 204(l) of the Immigration and Nationality Act (INA); and Humanitarian Reinstatement under INA Section 205 and 8 CFR 205.1(a)(3)(C)(2).



This article will focus on the Humanitarian Benefit available under Section 204(l) of the INA. Also, this article will detail who could act as a “Substitute Sponsor” when requesting Humanitarian Benefits under Section 204(l) of the INA and Humanitarian Reinstatement under INA Section 205 and 8 CFR 205.1(a)(3)(C)(2).



Humanitarian Benefit under Section 204(l) of INA



Section 568(d) of the FY 10 DFIS Appropriations Act created INA section 204(l) and was enacted on October 28, 2009. It applies to any petition adjudicated on or after that date - even if the case was filed before that date. While eligibility for relief under INA 204(l) is not limited to I-130 cases, this article will focus on I-130 cases.



In the context of family-based petitions, the following surviving beneficiaries are potentially eligible for benefits under INA 204(l):



  • The principal beneficiary of an Immediate Relative or family-based preference visa petition; and


  • The derivative beneficiary of a family-based preference visa petition.



The petition may have been pending or approved when the petitioner or principal beneficiary passed away. Further, to qualify under INA 204(l), the surviving beneficiary must:




  • Have resided[1]
    in the U.S. when the qualifying relative (petitioner or principal beneficiary) died;


  • Continue residing in the United States on the date of the decision on the pending petition or application; and


  • Meet all other I-130 eligibility requirements.



If anyone derivative beneficiary meets the residence requirements, the petition can be approved/reinstated which means all of the remaining derivative beneficiaries can also benefit from approval/reinstatement under INA 204(l), even if they are not residing in the United States.



Humanitarian Reinstatement under INA Section 205 & Humanitarian Benefit under INA Section 204(l): Who Could Sign Affidavit of Support?



USCIS regulations provide that when the petitioner dies, an approved[2] I-130 is automatically cancelled by operation of law. See 8 C.F.R. § 205.1(a)(3)(i)(B). This provision was ameliorated by a regulation which allowed the I-130 petition to be reinstated for humanitarian reasons. 8 C.F.R. § 205.1(a)(3)(i)(C). However, problems began with the passage of Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IRAIRA), which required a family-based petitioner to file a binding affidavit of support. INA § 212(a)(4)(C). Previously, there was no absolute requirement that the petitioner file an affidavit of support.



Thus, after IRAIRA, legacy INS took the position that the law effectively overruled the regulation allowing for humanitarian reinstatement. The government’s reasoning was that a binding affidavit of support by the petitioner is required for a family-based beneficiary to receive an LPR status. A dead petitioner can’t submit a binding affidavit of support. Therefore, there would be no point to granting humanitarian reinstatement of the I-130 since the beneficiary can’t obtain residence due to the lack of a binding affidavit of support from the petitioner.



This problem was resolved by the enactment of Family Sponsor Immigration Act, Public Law 107-150, 116 Stat. 74 on March 13, 2002. This legislation allows for an affidavit of support by a Substitute Sponsor if original sponsor has died and the Attorney General has granted humanitarian reinstatement. A substitute sponsor must be either a citizen or national, or else an alien lawfully admitted for permanent residence. The substitute sponsor must also be at least 18 years of age, and must have a domicile in the United States. If USCIS allows the approval of the visa petition to stand, then the sponsored alien’s 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 a legal guardian may sign the affidavit of support.



Conclusion



Based on the foregoing, it is not mandatory to have an approved I-130 in order to request reinstatement of I-130s by submitting a Humanitarian Benefit application under INA Section 204(l). Even if a principal or derivative beneficiary does not have an approved I-130 that was submitted by the late petitioner, she or he could submit a Humanitarian Benefit Application provided the applicant meets all of the requirements under Section 204(l) of the INA. Additionally, before submitting a Humanitarian Reinstatement Application under INA Section 205 or Humanitarian Benefit Application under Section 204(l) it is imperative to have a Substitute Sponsor who could sign the Affidavit of Support.







[1] Section 204(l) relief eligibility requires that someone must have “resided” in the United States; it does not require physical presence in the United States when the relative died. Residence is not interrupted by incidental travel. Events like a vacation, visiting family, or travel for work do not affect eligibility for Section 204(l) relief.




[2]unless the principal or derivative beneficiary qualifies for the Humanitarian Benefit under INA Section 204(l).










Reprinted with permission.






About The Author











Michael Phulwani
Michael Phulwani is admitted to practice law in India, New York and New Jersey. He has been practicing law for about 39 years in the field of Immigration and Nationality Law. He is admitted to practice law in New Jersey, New York, and India. He maintains law office in Maywood New Jersey, and in Mumbai India.. He has successfully handled many complex immigration matters with the Immigration and Naturalization Service and consular processing cases at American Consulates abroad especially consular posts in India. Michael Phulwani is the author of 'Guide to U.S. Visas' and numerous articles published in various ethnic newspapers and other publications in the U.S. and abroad such as News India, India Tribune and Gujarat Times. He has also co-authored a series of articles on American Consulates in India, Pakistan and Bangladesh published in "The Visa Processing Guide" by American Immigration Lawyers Association.





David Nachman
David Nachman is the founder and one of the Managing Attorneys in the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., a pre-eminent International Immigration and Nationality Law Firm dedicated to providing a wide array of business and family immigration law services for skilled U.S.- and Canada-bound workers. Attorney Nachman and fellow lawyers contributed to landmark decisions in such cases as Berger v. Berger and Woolley v. Hoffman-La Roche, Inc. The NPZ Law Group is an International Immigration Law Firm with offices in NJ and NY. The Firm has affiliated offices in Canada and India. The Firm specializes in providing assistance with waivers, removal defense, asylum, PERM, immigrant (Green Card) and various nonimmigrant visas, and immigration compliance matters for employers and employees and their families. Immigration professionals in NPZ Law Group speak many foreign languages including, but not limited to: Spanish, French, Japanese, Korean, Tamil, Hindi, Gujarati, Nepalese, Slovak, Czech, Russian, Polish, Tagalog, Hebrew, Chinese, German and English.





Rabindra Singh
Rabindra K. Singh is a Staff Attorney in the Ridgewood, New Jersey, office of Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. He is admitted to practice law in New Jersey, and India. Rabindra's work at NPZ focuses on complex employment and family-based immigration matters. From individuals to startups to multinational corporations, he has advised clients in a variety of industries, with a primary focus on the high tech, engineering, manufacturing, pharmaceutical, and financial industries. He represents clients before various immigration agencies of the Department of Homeland Security, the Department of Labor, and the Department of State. Rabindra's professional work experience also entails working with one of world's largest Information Technology (IT) Company, where he played a pivotal role in initiating the in-house processing of nonimmigrant visas. An avid writer, Rabindra writes frequently for both print and electronic media. His articles have appeared in the prestigious New Jersey Law Journal. In addition, he is a frequent contributor to the ILW.COM. Additionally, he actively writes articles for ethnic Indian newspapers.