Most unfortunate scenario!!

[Old Dominion 26]

By now, the OP is either en route to the US or has postponed the flight. It is not clear from any of the OP's information what type of visa has been issued, so if it one that includes a GC then the OP is even safer to travel and settle in.

[diadromous mermaid 36]

Once again I believe the critical issue here is the requirement of an Affidavit of Support. Aliens seeking entry to the USA are deemed inadmissible, under public charge grounds, even if bearing immigrant visas if they do not have an Affidavit of Support that meets the requirement of Section 213. Once again, the I-864 executed by the OP's Grandpa ended upon his death. Right now the OP and his family have no extant Affidavit of Support, and therefore, upon entry are in fact "inadmissible".

Once again, I believe a substitute sponsor is needed.

A substitute sponsor is a sponsor who is completing a Form I-864 on behalf of an intending immigrant whose original I-130 petitioner has died after the Form I-130 was approved, but before the intending immigrant obtained permanent residence. The substitute sponsor must be related to the intending immigrant in one of the following ways: spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years of age), son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild or legal guardian.The substitute sponsor must also be a U.S. citizen or lawful permanent resident.

If you are a substitute sponsor, you must indicate that that you are related to the intending immigrant in one of the ways listed above and include evidence proving that relationship.The beneficiary must also file this form along with a written statement explaining the reasons why the Form I-130 visa petition should be reinstated, having been revoked following the petitioner's death. The beneficiary must also include acopy of the Form I-130 approval notice.

On the I-864 form itself.

Edited December 4, 2008 by diadromous mermaid

[pushbrk 12,542]

Even if techically correct, just what is it you envision will happen if they present themselves at a POE?

My answer is they will be "admitted" and life will go on without incident until and unless there is an actual public charge issue in the future.

Once again I believe the critical issue here is the requirement of an Affidavit of Support. Aliens seeking entry to the USA are deemed inadmissible, under public charge grounds, even if bearing immigrant visas if they do not have an Affidavit of Support that meets the requirement of Section 213. Once again, the I-864 executed by the OP's Grandpa ended upon his death. Right now the OP and his family have no extant Affidavit of Support, and therefore, upon entry are in fact "inadmissible".

Once again, I believe a substitute sponsor is needed.

A substitute sponsor is a sponsor who is completing a Form I-864 on behalf of an intending immigrant whose original I-130 petitioner has died after the Form I-130 was approved, but before the intending immigrant obtained permanent residence. The substitute sponsor must be related to the intending immigrant in one of the following ways: spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years of age), son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild or legal guardian.The substitute sponsor must also be a U.S. citizen or lawful permanent resident.

If you are a substitute sponsor, you must indicate that that you are related to the intending immigrant in one of the ways listed above and include evidence proving that relationship.The beneficiary must also file this form along with a written statement explaining the reasons why the Form I-130 visa petition should be reinstated, having been revoked following the petitioner's death. The beneficiary must also include acopy of the Form I-130 approval notice.

On the I-864 form itself.

[diadromous mermaid 36]

Well that depends entirely on the line of discourse and their particular circumstances. For example, I believe that upon entry at the POE, their immigrant visas will be collected, and forms will be given to them that will begin the green card process. It's quite possible that the officer may simply collect the visas and nothing more be asked about it until the Service becomes aware that their entry occurred after the petitioner's death. At that time it would be determined that they 1. entered and were admitted, while technically inadmissible. 2. it might make their entry legally invalid. I don't know.

If asked where they are headed, or if the border agent asks about the petitioner at the POE, and they fail to mention that they are aware of his death, then it could be construed as 'misrepresentation' of a material fact.

Then there is the other issue. What if there is no one in the USA, domiciled here, that is a valid substitute sponsor, if given a chance to replace the deceased sponsor?

All I am saying is that it isn't necessarily a slam dunk, just because they had visas in their hands already. Especially when the revamping of the Final Rule for the Affidavit of Support provides them an opportunity to address this issue before trying to enter and activate their permanent residence.

Even if techically correct, just what is it you envision will happen if they present themselves at a POE?

My answer is they will be "admitted" and life will go on without incident until and unless there is an actual public charge issue in the future.

Once again I believe the critical issue here is the requirement of an Affidavit of Support. Aliens seeking entry to the USA are deemed inadmissible, under public charge grounds, even if bearing immigrant visas if they do not have an Affidavit of Support that meets the requirement of Section 213. Once again, the I-864 executed by the OP's Grandpa ended upon his death. Right now the OP and his family have no extant Affidavit of Support, and therefore, upon entry are in fact "inadmissible".

Once again, I believe a substitute sponsor is needed.

A substitute sponsor is a sponsor who is completing a Form I-864 on behalf of an intending immigrant whose original I-130 petitioner has died after the Form I-130 was approved, but before the intending immigrant obtained permanent residence. The substitute sponsor must be related to the intending immigrant in one of the following ways: spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years of age), son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild or legal guardian.The substitute sponsor must also be a U.S. citizen or lawful permanent resident.

If you are a substitute sponsor, you must indicate that that you are related to the intending immigrant in one of the ways listed above and include evidence proving that relationship.The beneficiary must also file this form along with a written statement explaining the reasons why the Form I-130 visa petition should be reinstated, having been revoked following the petitioner's death. The beneficiary must also include acopy of the Form I-130 approval notice.

On the I-864 form itself.

[john & jean 37]

Well that depends entirely on the line of discourse and their particular circumstances. For example, I believe that upon entry at the POE, their immigrant visas will be collected, and forms will be given to them that will begin the green card process. It's quite possible that the officer may simply collect the visas and nothing more be asked about it until the Service becomes aware that their entry occurred after the petitioner's death. At that time it would be determined that they 1. entered and were admitted, while technically inadmissible. 2. it might make their entry legally invalid. I don't know.

If asked where they are headed, or if the border agent asks about the petitioner at the POE, and they fail to mention that they are aware of his death, then it could be construed as 'misrepresentation' of a material fact.

Then there is the other issue. What if there is no one in the USA, domiciled here, that is a valid substitute sponsor, if given a chance to replace the deceased sponsor?

All I am saying is that it isn't necessarily a slam dunk, just because they had visas in their hands already. Especially when the revamping of the Final Rule for the Affidavit of Support provides them an opportunity to address this issue before trying to enter and activate their permanent residence.

Even if techically correct, just what is it you envision will happen if they present themselves at a POE?

My answer is they will be "admitted" and life will go on without incident until and unless there is an actual public charge issue in the future.

Once again I believe the critical issue here is the requirement of an Affidavit of Support. Aliens seeking entry to the USA are deemed inadmissible, under public charge grounds, even if bearing immigrant visas if they do not have an Affidavit of Support that meets the requirement of Section 213. Once again, the I-864 executed by the OP's Grandpa ended upon his death. Right now the OP and his family have no extant Affidavit of Support, and therefore, upon entry are in fact "inadmissible".

Once again, I believe a substitute sponsor is needed.

A substitute sponsor is a sponsor who is completing a Form I-864 on behalf of an intending immigrant whose original I-130 petitioner has died after the Form I-130 was approved, but before the intending immigrant obtained permanent residence. The substitute sponsor must be related to the intending immigrant in one of the following ways: spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years of age), son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild or legal guardian.The substitute sponsor must also be a U.S. citizen or lawful permanent resident.

If you are a substitute sponsor, you must indicate that that you are related to the intending immigrant in one of the ways listed above and include evidence proving that relationship.The beneficiary must also file this form along with a written statement explaining the reasons why the Form I-130 visa petition should be reinstated, having been revoked following the petitioner's death. The beneficiary must also include acopy of the Form I-130 approval notice.

On the I-864 form itself.

MY WIFE ENTERED LAST WEEK AND HER VISA WAS NOT TAKEN NOR WAS SHE GIVEN ANY GREENCARD APP. THIS WAS AN IMMIGRANT VISA

[pushbrk 12,542]

Well that depends entirely on the line of discourse and their particular circumstances. For example, I believe that upon entry at the POE, their immigrant visas will be collected, and forms will be given to them that will begin the green card process. It's quite possible that the officer may simply collect the visas and nothing more be asked about it until the Service becomes aware that their entry occurred after the petitioner's death. At that time it would be determined that they 1. entered and were admitted, while technically inadmissible. 2. it might make their entry legally invalid. I don't know.

If asked where they are headed, or if the border agent asks about the petitioner at the POE, and they fail to mention that they are aware of his death, then it could be construed as 'misrepresentation' of a material fact.

Then there is the other issue. What if there is no one in the USA, domiciled here, that is a valid substitute sponsor, if given a chance to replace the deceased sponsor?

All I am saying is that it isn't necessarily a slam dunk, just because they had visas in their hands already. Especially when the revamping of the Final Rule for the Affidavit of Support provides them an opportunity to address this issue before trying to enter and activate their permanent residence.

Even if techically correct, just what is it you envision will happen if they present themselves at a POE?

My answer is they will be "admitted" and life will go on without incident until and unless there is an actual public charge issue in the future.

Once again I believe the critical issue here is the requirement of an Affidavit of Support. Aliens seeking entry to the USA are deemed inadmissible, under public charge grounds, even if bearing immigrant visas if they do not have an Affidavit of Support that meets the requirement of Section 213. Once again, the I-864 executed by the OP's Grandpa ended upon his death. Right now the OP and his family have no extant Affidavit of Support, and therefore, upon entry are in fact "inadmissible".

Once again, I believe a substitute sponsor is needed.

A substitute sponsor is a sponsor who is completing a Form I-864 on behalf of an intending immigrant whose original I-130 petitioner has died after the Form I-130 was approved, but before the intending immigrant obtained permanent residence. The substitute sponsor must be related to the intending immigrant in one of the following ways: spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years of age), son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild or legal guardian.The substitute sponsor must also be a U.S. citizen or lawful permanent resident.

If you are a substitute sponsor, you must indicate that that you are related to the intending immigrant in one of the ways listed above and include evidence proving that relationship.The beneficiary must also file this form along with a written statement explaining the reasons why the Form I-130 visa petition should be reinstated, having been revoked following the petitioner's death. The beneficiary must also include acopy of the Form I-130 approval notice.

On the I-864 form itself.

MY WIFE ENTERED LAST WEEK AND HER VISA WAS NOT TAKEN NOR WAS SHE GIVEN ANY GREENCARD APP. THIS WAS AN IMMIGRANT VISA

Right, generally they just hand over the packet. CBP officers are just a conduit for transferring the file back to USCIS. With an immigrant visa, they aren't given any forms at the POE. They've already indicated the address at which they intend to live in the US and the green cards will be mailed there. If that address isn't available to them now, I don't see how they would receive their cards.

The officer doesn't collect the visas because they are glued to a page in their passports. He collects a sealed envelope containing the immigrants case file. How is the service going to become aware the entry occurred after the petitioner's death unless there is a public charge issue that brings it to their attention?

I'm just thinking through the process and what, as a practical matter, is likely to occur.

I'm not saying it's a slam dunk either. If there is no available sponsor then if a remedy is needed, it may not be available to them. On the other hand, by the time any potential remedy is needed, the immigrants may be in stable jobs and allowed to stay anyway. Certainly if they have no prospects, contacts and a place to live, coming to the USA is a bad idea. If they do, odds are they can live happily ever after.

[TBoneTX 44,391]

Even if techically correct, just what is it you envision will happen if they present themselves at a POE?

My answer is they will be "admitted" and life will go on without incident until and unless there is an actual public charge issue in the future. [...]

The officer doesn't collect the visas because they are glued to a page in their passports. He collects a sealed envelope containing the immigrants case file. How is the service going to become aware the entry occurred after the petitioner's death unless there is a public charge issue that brings it to their attention?

I'm just thinking through the process and what, as a practical matter, is likely to occur.

I'm not saying it's a slam dunk either. If there is no available sponsor then if a remedy is needed, it may not be available to them. On the other hand, by the time any potential remedy is needed, the immigrants may be in stable jobs and allowed to stay anyway. Certainly if they have no prospects, contacts and a place to live, coming to the USA is a bad idea. If they do, odds are they can live happily ever after.

On the basis of what we know, the above argument seems persuasive.

It could also be that the dead person's estate, when distributed to the immigrating relatives, could provide more "support" than any amount that the living person could have provided. Even if we envision the immigrants' being asked "is your petitioner alive" at ANY point (POE, AOS, whenever), how could a questioner respond to an answer of "the deceased's estate came to far more than what he could have provided us when he was alive"? I can't picture too many interviewers (or "grillers") being composed enough to ask for paperwork to back up the claim... or, perhaps, knowledgeable enough to know exactly what to ask for.

If the above reasoning is unsound, please dispute it. I would feel most comfortable accepting information that refers to something more recent than the "INS."

[maliciant 7]

Um, according to some articles I have read recently the US DOES deport people when their petitioner dies, even when they have filed for AOS but not yet attented the interview. That doesn't necessarily mean much in this case though.

[pushbrk 12,542]

Um, according to some articles I have read recently the US DOES deport people when their petitioner dies, even when they have filed for AOS but not yet attented the interview. That doesn't necessarily mean much in this case though.

Yes, it's apples and oranges. Certainly there's a possibility of eventual deportation but no "interview" or further immigration proceeding would be occuring without some activating event such as seeking out the sponsor to reimburse the government when the immigrant becomes a public charge.

CBP officers don't routinely check death records at the POE or even randomly quiz visa holders as to whether their sponsor recently died.

We've still seen no reference to cancelling or revoking an already issued visa, just visa petitions.

Edited December 4, 2008 by pushbrk

[Caladan 19]

Even if techically correct, just what is it you envision will happen if they present themselves at a POE?

My answer is they will be "admitted" and life will go on without incident until and unless there is an actual public charge issue in the future.

Whoa, whoa, whoa. "Technically correct" should be the extent of our advice here, especially since neither you nor I has any way to judge what is likely, because this particular situation is so rare. And they are in a gray area; they have immigrant visas, but are not yet permanent residents. And, before one is granted permanent residency, one has to have a valid I-864.

This isn't going to be their last contact with immigration. They're going to have to file the same paperwork as everyone else when they change addresses, they might go for citizenship, etc. Someone could end up being a public charge -- 10 years is a long time -- and it would suck if someone's trying to get a benefit for which he wasn't qualified ended up with the whole family being in trouble. Or anything, really.

It could also be that the dead person's estate, when distributed to the immigrating relatives, could provide more "support" than any amount that the living person could have provided. Even if we envision the immigrants' being asked "is your petitioner alive" at ANY point (POE, AOS, whenever), how could a questioner respond to an answer of "the deceased's estate came to far more than what he could have provided us when he was alive"? I can't picture too many interviewers (or "grillers") being composed enough to ask for paperwork to back up the claim... or, perhaps, knowledgeable enough to know exactly what to ask for.

The I-864 says that the obligation ends upon the sponsor's death; it's not automatic that someone's estate pays for someone's sponsored immigrant. So there's your answer right there. Now, it's entirely likely that his death might give them the funds or assets to self-sponsor; but he could have left all of his money to the cat or his wife or kids. In either case, if an I-864 is still required, it would have to be a new one filed. The problem is that we don't know if it's still required.

[pushbrk 12,542]

Even if techically correct, just what is it you envision will happen if they present themselves at a POE?

My answer is they will be "admitted" and life will go on without incident until and unless there is an actual public charge issue in the future.

Whoa, whoa, whoa. "Technically correct" should be the extent of our advice here, especially since neither you nor I has any way to judge what is likely, because this particular situation is so rare. And they are in a gray area; they have immigrant visas, but are not yet permanent residents. And, before one is granted permanent residency, one has to have a valid I-864.

This isn't going to be their last contact with immigration. They're going to have to file the same paperwork as everyone else when they change addresses, they might go for citizenship, etc. Someone could end up being a public charge -- 10 years is a long time -- and it would suck if someone's trying to get a benefit for which he wasn't qualified ended up with the whole family being in trouble. Or anything, really.

It could also be that the dead person's estate, when distributed to the immigrating relatives, could provide more "support" than any amount that the living person could have provided. Even if we envision the immigrants' being asked "is your petitioner alive" at ANY point (POE, AOS, whenever), how could a questioner respond to an answer of "the deceased's estate came to far more than what he could have provided us when he was alive"? I can't picture too many interviewers (or "grillers") being composed enough to ask for paperwork to back up the claim... or, perhaps, knowledgeable enough to know exactly what to ask for.

The I-864 says that the obligation ends upon the sponsor's death; it's not automatic that someone's estate pays for someone's sponsored immigrant. So there's your answer right there. Now, it's entirely likely that his death might give them the funds or assets to self-sponsor; but he could have left all of his money to the cat or his wife or kids. In either case, if an I-864 is still required, it would have to be a new one filed. The problem is that we don't know if it's still required.

The intending immigrant had their status approved at the visa interview, so they only activate it at the POE by simply entering the USA. What we don't know is that there is some actual danger involved in using their visas.

As I've said before, this boils down to whether....

1. The visa holders think immigrating will still work for them. (They have contacts, prospects and a place to live where the green cards can be mailed.)

and

2. They are willing to risk that there's a possibility they'll need to hire an attorney at some later date to represent them before an immigration judge. (like, when filing your taxes, "Do you make sure you'll never be audited or just proceed with the confidence you'll prevail at the audit?")

We have courts for a reason. That reason is there are judgements to be made and laws that need arguing as to their application to circumstances. Telling these people to stay home requires that we become the judge and/or interpreter of law for them. I'm not willing to do that and nobody may ever need to.

[TBoneTX 44,391]

We have courts for a reason. That reason is there are judgements to be made and laws that need arguing as to their application to circumstances. Telling these people to stay home requires that we become the judge and/or interpreter of law for them. I'm not willing to do that and nobody may ever need to.

This is all true, and the discussion in this thread continues to be stimulating yet frustratingly abstract. I sure wish that one or more actual legal opinions could be procured, perhaps with the situation posed as "hypothetical," and broadcast here.

[diadromous mermaid 36]

I'm surprised that most of you participating in this discussion seem so much more focused on the use of the immigrant visa and whether it would be discovered to have occurred after the death of the sponsor, than you are of the clear case of inadmissibility of ANY alien without an I-864. As far as I can see, the I-864 comes into play at the POE when the alien activates the visa and becomes a permanent resident. Until that time the I-864 is just a simple piece of paper without any function.

So, we know that the I-864 becomes invalid upon death of the sponsor. If the deceased's estate would suffice in the case of a sponsor that dies after signing the Affidvit, no "substitute sponsor" would be needed as a matter of law. The estate of the deceased might be on the hook for any claim of repayment for benefits drawn but cannot be left liable for a period of time that could be the lifetime of an alien (in that the alien might never work enough to accrue 40 quarters, or might never Naturalize). Therefore, I think the suggestion that the estate is sufficient to satisfy the terms of the I-864 is probably wrong.

What amazes me, in this casxe, is that for all intents and purposes, these aliens are inadmissible if the I-864 is no longer valid. Why is their case of inadmissibility any less significant to you who claim they should just "come on down!" than the inadmissibility of an alien that has declared he has distributed drugs, for example?

Edited December 4, 2008 by diadromous mermaid

[pushbrk 12,542]

I'm surprised that most of you participating in this discussion seem so much more focused on the use of the immigrant visa and whether it would be discovered to have occurred after the death of the sponsor, than you are of the clear case of inadmissibility of ANY alien without an I-864. As far as I can see, the I-864 comes into play at the POE when the alien activates the visa and becomes a permanent resident. Until that time the I-864 is just a simple piece of paper without any function.

So, we know that the I-864 becomes invalid upon death of the sponsor. If the deceased's estate would suffice in the case of a sponsor that dies after signing the Affidvit, no "substitute sponsor" would be needed as a matter of law. The estate of the deceased might be on the hook for any claim of repayment for benefits drawn but cannot be left liable for a period of time that could be the lifetime of an alien (in that the alien might never work enough to accrue 40 quarters, or might never Naturalize). Therefore, I think the suggestion that the estate is sufficient to satisfy the terms of the I-864 is probably wrong.

What amazes me, in this casxe, is that for all intents and purposes, these aliens are inadmissible if the I-864 is no longer valid. Why is their case of inadmissibility any less significant to you who claim they should just "come on down!" than the inadmissibility of an alien that has declared he has distributed drugs, for example?

Because they don't know they are inadmissible. Once admitted, there are potential paths to stay.

I say, "they don't know" because they have not been advised by any official that they are inadmissible. Once "admitted" their options tend to expand.

I have a hunch they've already been "admitted".

[Old Dominion 26]

Yes, they are probably already in the U.S. If there is some allegation made that they entered illegally because of a small technicality, then they are entitled to due process before a determination is made. More than likely, no such allegation will be made. There are many factors entering into a decision to grant visas, only one of which is the sponsorship. They had worked for years to get these visas, were found eligible, and should be admitted. Inadmissability of a drug dealer is exactly why we have visa laws to begin with.