Father (petitioner) passed away, the best way to make brother substitute petitioner?

[laloo 4]

lalloo, Have you heard from USCIS?

Not yet, I'll have to give them a call.

[criss 0]

hey. what up, have u called the uscis yet? what happened?

[laloo 4]

hey. what up, have u called the uscis yet? what happened?

I have still not heard back from USCIS, talked to an immigration agent in August, he said there is no timeline on how long they will take and I will only hear from them once it is approved. I will be writing a letter to them to request an update.

[Vanisha 0]

Hello,

I still have a question, you have mentioned that we have to send all of those documents together, but when i talked to the agent from USCIS, he informed me to send first Re-instated Humanitarian reason letter then if they approve it then, i will have to send I-864 for substitute sponser.

So, does it depend on the situation or what?

Please do reply,

thanks.

[Vanisha 0]

And also does the new substitute sponser have to send the re-instated humanitarian reason Or the beneficiary?

[Haarp425 26]

Under the law, USCIS has no authority to approve a petition after a petitioner dies. The reason your sister's case was approved was because USCIS was not informed that the petitioner had died. If USCIS was informed of your father's death, USCIS would have informed your sister that her petition was automatically withdrawn.

Depends.

New Section 204(l) of the Immigration and Nationality Act

New section 204(l) of the Act changes this governing law with respect to an alien who is seeking an immigration benefit through a deceased “qualifying relative.” Section 204(l) permits the approval of a visa petition or refugee/asylee relative petition, as well as any adjustment application and related application, if the alien seeking the benefit:

- Resided in the United States when the qualifying relative died;

- Continues to reside in the United States on the date of the decision on the pending petition or application; and

- Is at least one of the following:

-- The beneficiary of a pending or approved immediate relative visa petition;

-- The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries;

-- Any derivative beneficiary of a pending or approved employment-based visa petition;

-- The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative Petition;

-- An alien admitted as a derivative “T” or “U” nonimmigrant; or

-- A derivative asylee under section 208(b)(3) of the Act.

Sections 203(d), 207©(2)(A), and 208(b)(3)(A) permit the spouse or child of a principal alien to accompany or follow to join a principal alien. If any one beneficiary of a covered petition meets the residence requirements of section 204(l) of the Act, then the petition may be approved, despite the death of the qualifying relative, and all the beneficiaries may immigrate to the same extent that would have been permitted if the qualifying relative had not died. But it is not necessary for each beneficiary to meet the residence requirements in order to have the benefit of section 204(l).

The statute does not bar an alien who was actually abroad when the qualifying alien died from proving that the alien still resides in the United States. Also, section 204(l) of the Act does not require the alien to show that he or she was, or is, residing here "lawfully".

Similarly, the applicant must be admissible, or must obtain any available waiver of inadmissibility. The death of the qualifying relative also does not relieve the alien of the need to have a valid and enforceable Form I-864, Affidavit of Support, a substitute sponsor will need to submit a Form I-864.

Section 204(l) of the Act permits the approval of a waiver or other relief application despite the death of a qualifying relative if:

- a petition or application specified in paragraph ©(1) of this chapter was pending or approved when the qualifying relative died;

- the alien was residing in the United States when the qualifying relative died;; and

- the alien still resides in the United States.

Note that an alien who is present in the United States unlawfully does not accrue unlawful presence while a properly filed adjustment application is pending.

Check this link http://www.uscis.gov/uscis-ext-templating/uscis/jspoverride/uscisSearchOverrideRedirect.jsp?oid=7d52865c5d16d210VgnVCM100000082ca60aRCRD

[Jojo92122 1,924]

Depends.

New Section 204(l) of the Immigration and Nationality Act

New section 204(l) of the Act changes this governing law with respect to an alien who is seeking an immigration benefit through a deceased “qualifying relative.” Section 204(l) permits the approval of a visa petition or refugee/asylee relative petition, as well as any adjustment application and related application, if the alien seeking the benefit:

- Resided in the United States when the qualifying relative died;

- Continues to reside in the United States on the date of the decision on the pending petition or application; and

- Is at least one of the following:

-- The beneficiary of a pending or approved immediate relative visa petition;

-- The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries;

-- Any derivative beneficiary of a pending or approved employment-based visa petition;

-- The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative Petition;

-- An alien admitted as a derivative “T” or “U” nonimmigrant; or

-- A derivative asylee under section 208(b)(3) of the Act.

Sections 203(d), 207©(2)(A), and 208(b)(3)(A) permit the spouse or child of a principal alien to accompany or follow to join a principal alien. If any one beneficiary of a covered petition meets the residence requirements of section 204(l) of the Act, then the petition may be approved, despite the death of the qualifying relative, and all the beneficiaries may immigrate to the same extent that would have been permitted if the qualifying relative had not died. But it is not necessary for each beneficiary to meet the residence requirements in order to have the benefit of section 204(l).

The statute does not bar an alien who was actually abroad when the qualifying alien died from proving that the alien still resides in the United States. Also, section 204(l) of the Act does not require the alien to show that he or she was, or is, residing here "lawfully".

Similarly, the applicant must be admissible, or must obtain any available waiver of inadmissibility. The death of the qualifying relative also does not relieve the alien of the need to have a valid and enforceable Form I-864, Affidavit of Support, a substitute sponsor will need to submit a Form I-864.

Section 204(l) of the Act permits the approval of a waiver or other relief application despite the death of a qualifying relative if:

- a petition or application specified in paragraph ©(1) of this chapter was pending or approved when the qualifying relative died;

- the alien was residing in the United States when the qualifying relative died;; and

- the alien still resides in the United States.

Note that an alien who is present in the United States unlawfully does not accrue unlawful presence while a properly filed adjustment application is pending.

Check this link http://www.uscis.gov/uscis-ext-templating/uscis/jspoverride/uscisSearchOverrideRedirect.jsp?oid=7d52865c5d16d210VgnVCM100000082ca60aRCRD

This is a new law passed on October 28, 2009. Before this law was enacted, widowed foreign spouses of US citizens could not lift the conditions on their conditional green cards because their marriages ended when the US citizen spouses died. The widowed spouses would have to leave the US. In the most tragic cases, these widows had US citizen children and they would had to make the choice to leave their children in the US or take them to their foreign homes. This law ended the "Widow Penalty."

One of the key requirements of this new law is that the beneficiary must be residing in the US when the petitioner dies. It doesn't matter if the petition has been approved or not.

For a beneficiary like the OP who is residing outside the US when the petitioner dies, there is no relief under this new law. Humanitarian relief is only possible in a case like this if the petition was approved before the death of the petitioner.

http://www.usimmigrationteam.com/New-Relief-for-Widows-of-US-Citizens.htm

Edited March 24, 2011 by Jojo92122

[laloo 4]

Hello,

I still have a question, you have mentioned that we have to send all of those documents together, but when i talked to the agent from USCIS, he informed me to send first Re-instated Humanitarian reason letter then if they approve it then, i will have to send I-864 for substitute sponser.

So, does it depend on the situation or what?

Please do reply,

thanks.

Yes, that sounds correct. I didn't get all correct information from the USCIS rep on the phone. Now I know that you shouldn't waste your time with the first line USCIS reps, instead ask them to talk to a USCIS agent (if they waste your time use a way around like the option for 'lost case #'). Back to your question, I don't think I needed to send in the Affidavit of support to them, only the substitute request letter with the NOA1, birth/death certificates.

And also does the new substitute sponser have to send the re-instated humanitarian reason Or the beneficiary?

It is from the beneficiary, so they sign it, but of course you all will need to write it together.

[laloo 4]

Our case didn't go smoothly, so it is still stuck.

Here are some lessons learned from my experience:

1. It is not just a simple case of you writing a letter requesting substitute sponsor and USCIS readily accepting it. You have to make a solid case, it is up to the USCIS agent to decide whether or not to accept and this is pretty much your last chance. I would HIGHLY recommend getting an experienced attorney at this point because denial is a very real prospect if you are doing it yourself without any experience.

2. The substitute sponsor request letter has to be very compelling. A 'sad story' is not same as a 'humanitarian case' for the request.

3. Make sure your address with USCIS is correct (even if NVC has your most up to date address). An old address with USCIS can waste months and months of time.

... More to be added

Edited March 25, 2011 by laloo

[laloo 4]

A final update for the benefit of those who may come across this later:

Our case was denied.

- Apparently the substitute sponsor request we sent to NVC either didn't make it to the USCIS when NVC sent everything back to NVC after the petition was revoked due to petitioner death OR perhaps it did get to them but they never bothered to process it.

- Apparently USCIS revoked the case in Apr 2010, about 60 days after receiving everything back from NVC. It doesn't seem like they even considered the humanitarian request. And even though NVC had out correct address, the one USCIS had was an old one so we never heard anything from them. Even though we called them again and again, not once did anyone tell us the status of it being denied. They just kept telling me to write another letter requesting them to process the reinstatement request.

- Months and months of more calling finally led us to the fact that the address was wrong. We updated it. Also wrote a letter after months to USCIS asking them to process the request.

- Finally in Feb 2011 got a short letter from USCIS telling us the case had been revoked. The letter included an envelope with a request for evidence (RFE) cover letter, so we took this opportunity to submit a much longer humanitarian reinstatement request with a lot of evidence.

- Received final rejection letter 2 months later. Not much left at this point.

Lessons learned:

- Humanitarian reinstatement is highly discretionary, very few people get approved.

- GET AN ATTORNEY, GET AN ATTORNEY, GET AN ATTORNEY - if you want any chance of it going through. Spend the money and get a good lawyer, I can not stress this enough. At the very very least, spend $100-$200 for an initial 30-60 min consultation with an attorney about your case. If you file it yourself, 99% chance it will be rejected since you will not make a good case. No going back after getting rejected.

- If you have multiple family members who can file I-130 for immigration, have them all do it. $400 is nothing if after 8-13 years the petition is wasted because petitioner passes away. No way to turn back the clock at that point.

Edited March 1, 2012 by laloo

[JimVaPhuong 4,863]

A final update for the benefit of those who may come across this later:

Our case was denied.

- Apparently the substitute sponsor request we sent to NVC either didn't make it to the USCIS when NVC sent everything back to NVC after the petition was revoked due to petitioner death OR perhaps it did get to them but they never bothered to process it.

- Apparently USCIS revoked the case in Apr 2010, about 60 days after receiving everything back from NVC. It doesn't seem like they even considered the humanitarian request. And even though NVC had out correct address, the one USCIS had was an old one so we never heard anything from them. Even though we called them again and again, not once did anyone tell us the status of it being denied. They just kept telling me to write another letter requesting them to process the reinstatement request.

- Months and months of more calling finally led us to the fact that the address was wrong. We updated it. Also wrote a letter after months to USCIS asking them to process the request.

- Finally in Feb 2011 got a short letter from USCIS telling us the case had been revoked. The letter included an envelope with a request for evidence (RFE) cover letter, so we took this opportunity to submit a much longer humanitarian reinstatement request with a lot of evidence.

- Received final rejection letter 2 months later. Not much left at this point.

Lessons learned:

- Humanitarian reinstatement is highly discretionary, very few people get approved.

- GET AN ATTORNEY, GET AN ATTORNEY, GET AN ATTORNEY - if you want any chance of it going through. Spend the money and get a good lawyer, I can not stress this enough. At the very very least, spend $100-$200 for an initial 30-60 min consultation with an attorney about your case. If you file it yourself, 99% chance it will be rejected since you will not make a good case. No going back after getting rejected.

- If you have multiple family members who can file I-130 for immigration, have them all do it. $400 is nothing if after 8-13 years the petition is wasted because petitioner passes away. No way to turn back the clock at that point.

Thanks for coming back and updating us on this. What was the basis you used for requesting the humanitarian reinstatement?

I agree about hiring a lawyer, primarily because there is precious little information on the internet to help someone do this themselves. I would add that the client should learn as much as possible about humanitarian reinstatement, and grill the lawyer during the initial consultation about their specific experience with humanitarian reinstatement cases. What you'll discover is that most immigration lawyers have little or no experience with humanitarian reinstatement.

My wife's uncle asked for my assistance when his brother died. He had already filed a petition for his adult daughter in Vietnam. They got the letter from USCIS that the petition was headed for the NVC while they were making funeral arrangements. Naturally, I studied everything I could get my hands on regarding this. In the end, USCIS denied the humanitarian reinstatement because the daughter was married and had two children. As far as USCIS was concerned, her family was with her in Vietnam, and there was no compelling family reunification goal to be achieved by reaffirming the petition. I expected this result because I'd read a couple of lawyer blogs where they stated that the chances of getting a humanitarian reinstatement are practically nil if the beneficiary has married.

[Bernville 0]

Hi Laloo,

I have somehow has the same case with you. My grandfather filed a petition to my mom including her siblings. on 1992 of February my mom received a Notice of Action with the A#, Receipt# for the Application/Petition I130 Petition for Alien Relative, and from the body of the letter it says that

The above petition has been approved.

We have sent it to the Department of State Transitional Immigrant Visa Processing Center (TIVPC)

This completes all ins action on this petition. The Department of State Transitional Immigrant Visa Processing Center will communicate shortly with the person the petition is for concerning further immigrant Visa processing steps.

Form I-797

And lately on 1997 my Grandfather which is the petitioner died.

And as I understand, the petition filed by my Grandfather is approved already based on the NOA we received. My Mom then sent a Request for Humanitarian Reinstatement Form I-130 on year 2004 and lately we received a Notice of Transfer letter on February 2006 stating that the Petition for Alien Relative which had been automatically revoked. From that point my Mom did not sent a letter as she thought that it was already denied.

I just want to ask if we can then request to re-open the case and if there are any tips you can share that we can do? Since the Receipt# from the NOA we received is not pulling up any records on the https://egov.uscis.gov/cris/Dashboard.do.

Anyone from the Visa Journey community is welcome to share there opinion with regards to our case, I'm posting in behalf of my mom and this is a way for me to give it back to them..

Edited March 6, 2012 by Bernville

[laloo 4]

Hi Laloo,

I have somehow has the same case with you. My grandfather filed a petition to my mom including her siblings. on 1992 of February my mom received a Notice of Action with the A#, Receipt# for the Application/Petition I130 Petition for Alien Relative, and from the body of the letter it says that

And lately on 1997 my Grandfather which is the petitioner died.

And as I understand, the petition filed by my Grandfather is approved already based on the NOA we received. My Mom then sent a Request for Humanitarian Reinstatement Form I-130 on year 2004 and lately we received a Notice of Transfer letter on February 2006 stating that the Petition for Alien Relative which had been automatically revoked. From that point my Mom did not sent a letter as she thought that it was already denied.

I just want to ask if we can then request to re-open the case and if there are any tips you can share that we can do? Since the Receipt# from the NOA we received is not pulling up any records on the https://egov.uscis.gov/cris/Dashboard.do.

Anyone from the Visa Journey community is welcome to share there opinion with regards to our case, I'm posting in behalf of my mom and this is a way for me to give it back to them..

I think it is best to consult an attorney. When your mother filed for humanitarian reinstatement, as far as I know, she should have received a response specifically saying humanitarian reinstatement is denied. In general, the petition is always automatically revoked on the death of the petitioner so you have to figure out whether the letter your mom received was automatic revocation or specifically denial of humanitarian reinstatement request.

If you get an attorney, he may first have you file a Freedom of Information Request, which is quite simple but gets you your full file from USCIS, that way you know everything that happened. Usually you only have 60 days after revocation to file for humanitarian reinstatement and then 30-60 days after that is denied to file an appeal. If all of these deadlines are gone, then the only thing left would probably be going to court to a district judge but highly unlikely to do anything unless you can show some new evidence that wasn't originally considered.

Anyways, if you seriously want to pursue this, I'd highly recommend getting a good attorney. At the very least, do an initial consultation with a good attorney (usually 30-60 minutes for $100).

[laloo 4]

Thanks for coming back and updating us on this. What was the basis you used for requesting the humanitarian reinstatement?

Without going into details, it was based on family ties and the security situation there especially for US family members whose lives would be in danger visiting that part of the world. Case was quite strong but got denied, apparently humanitarian reinstatement is very discretionary and very rare to get it.

Advice to all: If you have multiple family members in the US, have each of them petition for you separately so you never have to deal with such a situation, it is only $400 extra vs. waiting an extra 8-13 years or worse, and don't worry about affidavit of support, that comes later.

[red731 1]

i will share my experienced about my family's request for humanitarian reinstatement...in 1998 my father petitioned us,my father(petitioner) died in 2005,in 2010 we received a letter from NVC that our petitions(4 of us) become current and ready for visa processing,and in that letter a form of a choice of address was included,we signed the form but we also included a letter telling the NVC that our petitioner is already dead,after a month NVC said that we should send them my father's death certificate,we complied with it and after the NVC receieved my father's death certificate,NVc said that they returned our petitions to USCIS and all correspondence should be address to USCIS regarding our petitions..my brother who will be our substitute sponsor wrote a letter asking for humanitarian reinstatement,after 5 months months my brother received a reply and in that letter USCIS said that the benificiaries should be the one to make a humanitarian reinstatement request...my brother(substitute sponsor) planned to hire a lawyer in fact he consulted with a lawyer but the lawyer said that we only have a small chance of getting our petitions be reinstated and the fee is exorbitant if we would like to hire him,so we decided that we will not get a lawyer...i spent more than a year researching on how to make our HR request,i know for a fact that we will have one chance of having it reinstated,while doing my research,i never read anything about a successful HR request most of them got denied it was very frustrating,but i just continued researching,what help me a lot was the USCIS website,especially all those memos about HR,when it was time for me to write our HR request i am well informed and confident that i can make it right...our humanitarian request letters was short but precise plus i included with it all the documents needed,the affidavit of support was filled up correctly and we got a favorable response,me and my 3 brothers petitions were reinstated....

the best time to request for humanitarian reinstatement is when your petition becomes current,plus make your letter short and precise and you must have provide a complete documents,no room for mistakes,so i advise you to spend time to research and the affidavit of support should be answered correctly...thse tthings are only based on my experience...and even if you hire a lawyer,your not 100% sure that your HR request will get a favorable response,as some people told me that evenif they hire a lawyer their HR request was denied....