| SUBSTITUTE AFFIDAVIT OF SUPPORT
The Atyes Memorandum unlawfully requires, as a precondition to I-130 approval and non-revocation, the filing of a substitute affidavit of support sponsor. As argued in the Motion for Summary Judgment in the Hootkins v. Chertoff class action litigation, such requirements are unlawful as applied to the I-130 petition.
If a surviving spouse within the Ninth Circuit desires to have his or her application considered under the Aytes Memorandum, an affidavit of support (Form I-864) should be filed along with a request for humanitarian reinstatement. The I-864 may only be filed, according to the Aytes Memorandum, by one of the relatives of the surviving spouse listed in 8 USC 1183(f)(5)(B) (see bolded list to the right).
Of course, even if a surviving spouse has sufficient resources to assure he or she will not become a public charge, it may be impossible to submit an I-864 due to the non-existence or unwillingness of one of the listed relatives. The class action litigation may resolve this issue.
| Volume 8 United States Code 1183a; INA 213A
(f) “Sponsor” defined
(1) In general
For purposes of this section the term “sponsor” in relation to a sponsored alien means an individual who executes an affidavit of support with respect to the sponsored alien and who—
(A) is a citizen or national of the United States or an alien who is lawfully admitted to the United States for permanent residence;
(B) is at least 18 years of age;
(C) is domiciled in any of the several States of the United States, the District of Columbia, or any territory or possession of the United States;
(D) is petitioning for the admission of the alien under section 1154 of this title; and
(E) demonstrates (as provided in paragraph (6)) the means to maintain an annual income equal to at least 125 percent of the Federal poverty line.
...
(5) Non-petitioning cases
Such term also includes an individual who does not meet the requirement of paragraph (1)(D) but who—
(A) accepts joint and several liability with a petitioning sponsor under paragraph (2) or relative of an employment-based immigrant under paragraph (4) and who demonstrates (as provided under paragraph (6)) the means to maintain an annual income equal to at least 125 percent of the Federal poverty line; or
(B) is 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, or grandchild of a sponsored alien or a legal guardian of a sponsored alien, meets the requirements of paragraph (1) (other than subparagraph (D)), and executes an affidavit of support with respect to such alien in a case in which—
(i) the individual petitioning under section 1154 of this title for the classification of such alien died after the approval of such petition; and
(ii) the Attorney General has determined for humanitarian reasons that revocation of such petition under section 1155 of this title would be inappropriate.
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