sponsoring brother - unknown date

[sciencenerd 56]

I posted a question about this a little over a year ago, so I hope it's okay for me to post again since maybe new people are around that might know something about this.

This may be a strange question, but I haven't been able to find an answer to it. My wife got approved for permanent residency in May 2010 and will be applying for citizenship as soon as she is eligible (2013). My question is actually about her brother. He is autistic and in all likelihood will end up with us if anything ever happens to his (and my wife's) mother. We are trying to figure out how to properly plan for this likely scenario. I understand that it will be about 10 years for her brother's priority date to come up after we can file, but I'm more concerned about after that. Hopefully, this will not be something that comes up for many, many years (my wife's mom is only 59 now), but we probably won't have much notice when it's necessary. Her brother needs 24 hour supervision and we are basically the only family. What can we do to prepare for this?

Some specific questions:

- Will the fact that her brother has autism make him inadmissible? He will not be able to be able to respond to interviewers' questions or advocate for himself in any way. We are financially stable and have no problem sponsoring him so he won't be a "public charge".

- If her brother is approved through sibling sponsorship (probably in 15 years-ish), how long does he have to move down here? (can he be approved and then just move down here at the point when his mom can no longer care for him?)

- We will be his legal guardians if something happens to my mother-in-law. can we sponsor him as parents? I remember reading that any adoption type situation had to occur before the beneficiary's 16th birthday, so I'm thinking that's not an option.

- Are there alternative options for this type of situation, especially if (God forbid), something happened to his mom prior to his priority date coming up? We would need near-immediate approval to ensure he is safe and cared for.

I don't want to be morbid, but with the time required for immigration, we are trying to make sure we have some plan that won't leave him without any care or supervision in Canada. We definitely want to allow him to live in Canada with his mom for as long as possible. This is obviously very long term planning, but it is impossible for us to know exactly when he will need to be able to move here, whether next month or in 30 years. I don't understand how to work with immigration for this type of situation.

Any information or advice would be appreciated. Thank you

[dragonlover 6]

i have been watching this immigration show called "citizen pinoy" at the tfc channel, i have come to know that petition for sibling will gonna take 21-23 yrs...depending on the visa availabilty.. sorry to be the bearer of bad news.. just keeping it real..=)

[NigeriaorBust 4,087]

There isn't a lot you can do to make things happen at your pace. You will almost certainly need to show that you are providing insurance for his special needs. Even today that is terribly expensive. Have you considered what if you are not around when your MIL dies ( age does not always determine death order ) You may want to consider a back up plan such as a assisted living center, in case you are not able to take over or through some snag in the immigration process you can't bring him immediately. The 23 years is only one country currently, but who knows what changes future immigration laws bring.

[JimVaPhuong 4,863]

i have been watching this immigration show called "citizen pinoy" at the tfc channel, i have come to know that petition for sibling will gonna take 21-23 yrs...depending on the visa availabilty.. sorry to be the bearer of bad news.. just keeping it real..=)

Nope. The Philippines are heavily oversubscribed, which is why the wait is more than 20 years. It's not the same situation for Canada. They are not oversubscribed on F4 petitions. The OP was correct - it's about 10 years.

sciencenerd, the two biggest issues you're likely to face are the psychological inadmissibility issue, and the public charge issue.

Here's the relevant section of INA 212 regarding the psychological inadmissibility:

(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or

(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior,

So, if he has any history of hurting himself, hurting other people, damaging property, etc. then he would be classified as inadmissible. Likewise, if a doctor concludes that there's an ongoing risk of him doing any of these things then he's inadmissible. I know that people who are severely autistic sometimes require round the clock supervision in order to keep them from hurting themselves or hurting someone else. A rational and compassionate person would forgive an autistic person if they throw the family cat in the lake. It becomes a completely different matter if the autistic person comes to the US and throws the neighbor's cat into the lake. I would expect the medical examination to focus on this aspect, and I would expect the CO to look carefully at the medical examination report.

You can also expect the "public charge" requirement to be carefully scrutinized. It goes far beyond simply providing a sufficient affidavit of support. The law requires the CO to look first at the alien's ability to support themselves. Your brother in-law will obviously never be able to support himself, so the consulate is going to want solid evidence that you have all the bases covered, and will likely continue to cover them for the remainder of his natural life. He will never accrue 40 quarters of Social Security work credits, and he will never become a US citizen (he won't be able to pass the citizenship test), so your wife will be on the hook for the affidavit of support until either she or her brother dies. He will also never be eligible for earned benefits from the US government, like unemployment insurance or Social Security retirement benefits. Anything he would ever be eligible for would be a means tested benefit. The consulate is going to consider this fact. A major factor is likely to be medical insurance. The consulate will probably want proof that you are providing this.

Both USCIS and the consulate have the authority to expedite processing if there is an urgent humanitarian need. However, they can't do anything about his priority date. Until his priority date is current, there is no visa number available for him. They can't approve a visa until there's a visa number available for him.

[sciencenerd 56]

There isn't a lot you can do to make things happen at your pace. You will almost certainly need to show that you are providing insurance for his special needs. Even today that is terribly expensive. Have you considered what if you are not around when your MIL dies ( age does not always determine death order ) You may want to consider a back up plan such as a assisted living center, in case you are not able to take over or through some snag in the immigration process you can't bring him immediately. The 23 years is only one country currently, but who knows what changes future immigration laws bring.

Thanks for your input. My mother-in-law is really in charge of what happens to him for now, but I suppose you're right that we need to sit down with her and make sure a plan B is around for him because right now there isn't.

[sciencenerd 56]

Nope. The Philippines are heavily oversubscribed, which is why the wait is more than 20 years. It's not the same situation for Canada. They are not oversubscribed on F4 petitions. The OP was correct - it's about 10 years.

sciencenerd, the two biggest issues you're likely to face are the psychological inadmissibility issue, and the public charge issue.

Here's the relevant section of INA 212 regarding the psychological inadmissibility:

(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or

(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior,

So, if he has any history of hurting himself, hurting other people, damaging property, etc. then he would be classified as inadmissible. Likewise, if a doctor concludes that there's an ongoing risk of him doing any of these things then he's inadmissible. I know that people who are severely autistic sometimes require round the clock supervision in order to keep them from hurting themselves or hurting someone else. A rational and compassionate person would forgive an autistic person if they throw the family cat in the lake. It becomes a completely different matter if the autistic person comes to the US and throws the neighbor's cat into the lake. I would expect the medical examination to focus on this aspect, and I would expect the CO to look carefully at the medical examination report.

You can also expect the "public charge" requirement to be carefully scrutinized. It goes far beyond simply providing a sufficient affidavit of support. The law requires the CO to look first at the alien's ability to support themselves. Your brother in-law will obviously never be able to support himself, so the consulate is going to want solid evidence that you have all the bases covered, and will likely continue to cover them for the remainder of his natural life. He will never accrue 40 quarters of Social Security work credits, and he will never become a US citizen (he won't be able to pass the citizenship test), so your wife will be on the hook for the affidavit of support until either she or her brother dies. He will also never be eligible for earned benefits from the US government, like unemployment insurance or Social Security retirement benefits. Anything he would ever be eligible for would be a means tested benefit. The consulate is going to consider this fact. A major factor is likely to be medical insurance. The consulate will probably want proof that you are providing this.

Both USCIS and the consulate have the authority to expedite processing if there is an urgent humanitarian need. However, they can't do anything about his priority date. Until his priority date is current, there is no visa number available for him. They can't approve a visa until there's a visa number available for him.

Thanks for the info! Luckily, my brother-in-law has absolutely no signs of aggression towards himself or others. When he gets super frustrated or upset, he just shakes his head back and forth and says "no" repeatedly - pretty harmless. I think we'd have enough documentation for that with years of schooling, caseworkers, etc. in Canada. The public charge piece may be more difficult. As of right now, it would be no problem - he would be eligible to be on my health plan at work once we were his official legal guardians. However, I guess I can't be 100% sure that I will always have employment that will offer insurance, especially as this gets less common. I guess we'll need to assess things more long-term to try the get ourselves in the best position possible to care for him. We'll do some thinking about that and figuring out if there are any other options.

The main thing I'm hearing is that absolutely nothing could happen unless/until he as a current priority date. So, if we apply as soon as possible (when my wife ?naturalizes), his priority date will come up in 10-ish years. At that point, can we apply whenever, even if it's another 10-15 years? Or are you required to apply as soon as your priority date comes up? Basically, does having your priority date current mean that you can apply? Or do they just process your original application at that point? Basically, the ideal plan would be to apply, wait out the 10 years, and then have the benefit of being to apply when it becomes necessary having already "waited in line". I don't suppose that's possible? Thanks again for your help.

[Jojo92122 1,924]

Thanks for the info! Luckily, my brother-in-law has absolutely no signs of aggression towards himself or others. When he gets super frustrated or upset, he just shakes his head back and forth and says "no" repeatedly - pretty harmless. I think we'd have enough documentation for that with years of schooling, caseworkers, etc. in Canada. The public charge piece may be more difficult. As of right now, it would be no problem - he would be eligible to be on my health plan at work once we were his official legal guardians. However, I guess I can't be 100% sure that I will always have employment that will offer insurance, especially as this gets less common. I guess we'll need to assess things more long-term to try the get ourselves in the best position possible to care for him. We'll do some thinking about that and figuring out if there are any other options.

The main thing I'm hearing is that absolutely nothing could happen unless/until he as a current priority date. So, if we apply as soon as possible (when my wife ?naturalizes), his priority date will come up in 10-ish years. At that point, can we apply whenever, even if it's another 10-15 years? Or are you required to apply as soon as your priority date comes up? Basically, does having your priority date current mean that you can apply? Or do they just process your original application at that point? Basically, the ideal plan would be to apply, wait out the 10 years, and then have the benefit of being to apply when it becomes necessary having already "waited in line". I don't suppose that's possible? Thanks again for your help.

The I-130 that your US citizen wife would file for her brother will never expire. Once his PD is current, he can take as long as he want to file for a visa. There is no time restriction on when he has to file. The case would only end if the petitioner (your wife) or the beneficiary (your brother in law) were to die.

[sciencenerd 56]

The I-130 that your US citizen wife would file for her brother will never expire. Once his PD is current, he can take as long as he want to file for a visa. There is no time restriction on when he has to file. The case would only end if the petitioner (your wife) or the beneficiary (your brother in law) were to die.

Thank you! That is extremely helpful to know and something I could not quite figure out on my own.

[JimVaPhuong 4,863]

While it's generally true that the approved I-130 petition never expires, there are some caveats here...

The petition is terminated if the petitioner dies. In this case, humanitarian reinstatement is possible if a case of family reunification can still be made, and if a qualifying relative of the beneficiary is willing to be the substitute sponsor and submit an affidavit of support.

I've read on numerous sites that NVC provides a one year window to respond at each step of the NVC clearance process. The petitioner has one year to respond to the I-864 fee bill request. They have one year to return the I-864. The beneficiary has one year to return the choice of agent form, etc. If the petitioner or beneficiary don't respond within one year then NVC begins the process to "close" or "terminate" the case. I don't know exactly what this means, nor do I know exactly what happens to the petition after that. If I had to guess, I'd say that NVC sends the petition back to USCIS, and USCIS sends the petition to their file storage facility in Harrisonburg, VA. If you wanted to revive the petition after that you'd probably have to send a letter to USCIS asking that the file be pulled and sent back to the NVC. Dunno. I'm not sure about that process.

The point is that NVC processing is pretty much automatic. When the petition is approved then it's sent to NVC to begin processing there. NVC won't sit on the petition forever waiting for either the petitioner or the beneficiary to respond.