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

#1 laloo

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Posted 03 September 2009 - 05:42 PM

I have a few questions and really hope someone can clarify a few things on the best way to proceed.

My father (petitioner) applied for his daughter's immigration 8-9 years ago. Finally last week we got a letter in the mail that the petition had been forwarded to the NVC. The problem is that the father passed away a few years ago and only now we realized that if the petitioner passes away, the petition is vioded unless one requests it to be reinstated for humanitarian reasons. The brother would like to be the substitute for the affidavit of support so that we can request the petition to be reinstated.

Here are some questions I have, if someone can help, we would really appreciate it:

1. Where should the request for petition reinstatement be sent? In usual circumstances, they say send it to USCIS office, but in this case, we got delayed and the petition has already been forwarded by USCIS office to the NVC. Would it be better to send in the petition reinstatement request to NVC?

2. Since the brother will be the substitute financial sponsor, will the petition now be consider L4 and delayed or will the petition be reinstated as the original L1?

3. For the affidavit of support I-864, on line 9, it states "I am sponsoring the following family members immigrating at the same time or within six months of the principal immigrant named in Part 2 above." Am I required to list her husband and children here so they can get derivative visas with her? Is listing them here needed for the derivative visas to be processed?

4. The letter from NVC also asked for $70 for processing the affidavit of support that the father orignally filed. Now, when I file the substitute affidavit of support, do I need to wait for them to ask me for the processing fee? Or do I just pay the $70 and it will be applied to the petition?

5. The letter also has a DS-3032. Should we fill it out and send it back? Or will they be sending us all these forms etc. again once they accept the substitue sponsor and petition reinstatement? Basically, just want to make sure time is not lost in waiting for them to ask for things again if something can be done now.

I'd really appreciate any advice and help! Thanks!

Edited by laloo, 03 September 2009 - 05:46 PM.

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#2 aaron2020

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Posted 03 September 2009 - 07:03 PM

QUOTE (laloo @ Sep 3 2009, 06:42 PM) <{POST_SNAPBACK}>
I have a few questions and really hope someone can clarify a few things on the best way to proceed.

My father (petitioner) applied for his daughter's immigration 8-9 years ago. Finally last week we got a letter in the mail that the petition had been forwarded to the NVC. The problem is that the father passed away a few years ago and only now we realized that if the petitioner passes away, the petition is vioded unless one requests it to be reinstated for humanitarian reasons. The brother would like to be the substitute for the affidavit of support so that we can request the petition to be reinstated.

Here are some questions I have, if someone can help, we would really appreciate it:

1. Where should the request for petition reinstatement be sent? In usual circumstances, they say send it to USCIS office, but in this case, we got delayed and the petition has already been forwarded by USCIS office to the NVC. Would it be better to send in the petition reinstatement request to NVC?

2. Since the brother will be the substitute financial sponsor, will the petition now be consider L4 and delayed or will the petition be reinstated as the original L1?

3. For the affidavit of support I-864, on line 9, it states "I am sponsoring the following family members immigrating at the same time or within six months of the principal immigrant named in Part 2 above." Am I required to list her husband and children here so they can get derivative visas with her? Is listing them here needed for the derivative visas to be processed?

4. The letter from NVC also asked for $70 for processing the affidavit of support that the father orignally filed. Now, when I file the substitute affidavit of support, do I need to wait for them to ask me for the processing fee? Or do I just pay the $70 and it will be applied to the petition?

5. The letter also has a DS-3032. Should we fill it out and send it back? Or will they be sending us all these forms etc. again once they accept the substitue sponsor and petition reinstatement? Basically, just want to make sure time is not lost in waiting for them to ask for things again if something can be done now.

I'd really appreciate any advice and help! Thanks!


Your sister will have to start all over from the beginning. Substitution can only occur if the petitioner dies after approval of the petition. Your father died before your sister's case was approved so a substitution is not possible.

-------------

The Family Sponsor Immigration Act of 2002 remedies the situation of an alien whose petitioner has died by amending INA sections § 212(a)(4)©(ii) and § 213A(f)(5). The amended § 213A(f)(5) creates a way in which a person other than the visa petitioner can sponsor an alien. Section 213A(f)(5)(B) now allows certain family members to become “substitute sponsors” if a visa petitioner dies following approval of the visa petition, but before the alien obtains permanent residence.

Section 213A(f)(5)(B)(i) specifically states that the visa petition must be approved prior to the death of the petitioner in order for the beneficiary to be eligible for permanent residence. The INS has no authority to approve a visa petition following the petitioner’s death. Dodig v. INS, 9 F.3d 1418 (9th Cir. 1993).

www.uscis.gov/files/pressrelease/PL107_150Pub.pdf

Edited by aaron2020, 03 September 2009 - 07:05 PM.

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#3 aaron2020

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Posted 03 September 2009 - 07:10 PM

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.
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#4 laloo

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Posted 03 September 2009 - 07:18 PM

QUOTE (aaron2020 @ Sep 3 2009, 05:10 PM) <{POST_SNAPBACK}>
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.


Thanks Aaron!

Wow, thats a bummer sad.gif So basically the petition being forwarded to NVC happens right at the time when the petition is approved? The reason I ask is because the letter does not state anywhere that the petition was approved last week (vs. a few years back), just says it has arrived at NVC for processing. Is there a place to check the exact petition date of approval?

Edited by laloo, 03 September 2009 - 07:19 PM.

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#5 aaron2020

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Posted 03 September 2009 - 07:48 PM

QUOTE (laloo @ Sep 3 2009, 08:18 PM) <{POST_SNAPBACK}>
QUOTE (aaron2020 @ Sep 3 2009, 05:10 PM) <{POST_SNAPBACK}>
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.


Thanks Aaron!

Wow, thats a bummer sad.gif So basically the petition being forwarded to NVC happens right at the time when the petition is approved? The reason I ask is because the letter does not state anywhere that the petition was approved last week (vs. a few years back), just says it has arrived at NVC for processing. Is there a place to check the exact petition date of approval?


If you have some basic information, you can look for the last action by USCIS online. Generally, the approval date will be provided.

https://egov.uscis.g.../jsps/index.jsp
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#6 laloo

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Posted 03 September 2009 - 10:34 PM

QUOTE (aaron2020 @ Sep 3 2009, 05:48 PM) <{POST_SNAPBACK}>
If you have some basic information, you can look for the last action by USCIS online. Generally, the approval date will be provided.

https://egov.uscis.g.../jsps/index.jsp


Thanks Aaron!

I checked the website and got the following:

Current Status: Approval notice sent.

On July 25, 2003, we mailed you a notice that we have approved this I130 IMMIGRANT PETITION FOR RELATIVE, FIANCE(E), OR ORPHAN. Please follow any instructions on the notice. If you move before you receive the notice, call customer service.


This is really great news, since it was before the petitioner passed away!

Not sure why it took 6 more years to hear from the NVC, looks like they have been waiting for a visa number and perhaps expect one to be available within the next year!

Aaron (and others), now that it seems like we can request reinstatement, can you kindly provide any kind of guidance you may have in regards to the questions in the first post. Thanks!
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#7 aaron2020

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Posted 03 September 2009 - 11:06 PM

QUOTE (laloo @ Sep 3 2009, 11:34 PM) <{POST_SNAPBACK}>
QUOTE (aaron2020 @ Sep 3 2009, 05:48 PM) <{POST_SNAPBACK}>
If you have some basic information, you can look for the last action by USCIS online. Generally, the approval date will be provided.

https://egov.uscis.g.../jsps/index.jsp


Thanks Aaron!

I checked the website and got the following:

Current Status: Approval notice sent.

On July 25, 2003, we mailed you a notice that we have approved this I130 IMMIGRANT PETITION FOR RELATIVE, FIANCE(E), OR ORPHAN. Please follow any instructions on the notice. If you move before you receive the notice, call customer service.


This is really great news, since it was before the petitioner passed away!

Not sure why it took 6 more years to hear from the NVC, looks like they have been waiting for a visa number and perhaps expect one to be available within the next year!

Aaron (and others), now that it seems like we can request reinstatement, can you kindly provide any kind of guidance you may have in regards to the questions in the first post. Thanks!


Go here for some help. http://www.uscis.gov...00045f3d6a1RCRD

I don't know anything about substitute sponsors beyond what I have already posted. You may want to consult with a lawyer after viewing this link.

---------

How can I reinstate a visa petition that was revoked by the death of the original petitioner?

Typically, when the visa petitioner dies, the approved I-130 originally filed by the visa petitioner is automatically revoked. However, following the passage of the Family Sponsor Immigration Act (P.L. 107-150), beneficiaries of these petitions may file for reinstatement so long as they can provide an I-864, Affidavit of Support, filed by a “substitute sponsor.”

In order to seek reinstatement of the visa petition, you must submit a statement to the USCIS office where the original visa petition was filed formally requesting reinstatement of the visa petition. The statement should list reasons why your case warrants reinstatement, such as your ties to the United States, or hardship that would occur to you if the request for reinstatement were not granted.

You must also include with your reinstatement request a Form I-864 completed by a “substitute sponsor”. A substitute sponsor must be a citizen or national, or an alien lawfully admitted for permanent residence, at least 18 years of age, and a resident in the United States. A substitute sponsor must also be related to you as one of the following: 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. This substitute sponsor is filing the I-864 in place of the deceased petitioner, and must meet all of the financial requirements of a sponsor under INA section 213A.

With your reinstatement request you must provide documentary evidence of the death of the original petitioner, plus documentation of the relationship between you and the substitute sponsor. Finally, include a copy of your approved I-130, if available.

What is a “substitute sponsor” and how can I be one?

A substitute sponsor is a sponsor who files From I-864, Affidavit of Support, in place of a visa petitioner who has died. In order to be a “substitute sponsor,” you must be related to the intending immigrant in one of the following ways: 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. You must also be a U.S. citizen or national or an alien lawfully admitted for permanent residence, be at least 18 years of age, domiciled in the United States, and meet all of the financial requirements of a sponsor under INA section 213A.

When the request for reinstatement is approved, and the intending immigrant ultimately obtains permanent residence in the United States, you will assume all of the obligations of a I-864 sponsor.

In order to be a “substitute sponsor,” complete Form I-864 and submit it to the USCIS office where the revoked visa petition (Form I-130) was originally filed, along with a statement from the intending immigrant formally requesting reinstatement and evidence that you are related to the intending immigrant in one of the ways listed above. (See “How can I reinstate a visa petition that was revoked by the death of the original petitioner?”)

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#8 laloo

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Posted 04 September 2009 - 12:59 AM

Thanks Aaron! I read that information a few times over the past week but it is quite brief and didn't answer some of the questions that came to mind. I guess I might need to call the NVC for some of those questions.

If anyone has had an experience with a substitue sponsor filing, please share it here.

One of the questions (below) is more general, it comes up for all cases when affidavit of support is filed, so if anyone knows, please post:

1. For the affidavit of support I-864, on line 9, it states "I am sponsoring the following family members immigrating at the same time or within six months of the principal immigrant named in Part 2 above." Am I required to list her husband and children here so they can get derivative visas with her? Is listing them here needed for the derivative visas to be processed?

2. Also, seems like once the person makes it to the US, they get the green card within weeks. What about that persons children and spouse who get visas due to derivative status. Do they get green cards at the same time as well or do they just get visas and apply for permanent immigration (green cards) based on the principal sponsor?
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#9 aaron2020

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Posted 04 September 2009 - 03:57 AM

QUOTE (laloo @ Sep 4 2009, 01:59 AM) <{POST_SNAPBACK}>
Thanks Aaron! I read that information a few times over the past week but it is quite brief and didn't answer some of the questions that came to mind. I guess I might need to call the NVC for some of those questions.

If anyone has had an experience with a substitue sponsor filing, please share it here.

One of the questions (below) is more general, it comes up for all cases when affidavit of support is filed, so if anyone knows, please post:

1. For the affidavit of support I-864, on line 9, it states "I am sponsoring the following family members immigrating at the same time or within six months of the principal immigrant named in Part 2 above." Am I required to list her husband and children here so they can get derivative visas with her? Is listing them here needed for the derivative visas to be processed?

You will need to list her husband and children on the I-864. The sponsor files a single I-864 for each case. A case is one I-130 petition. So there would be only one I-864 for your sister, her husband and her unmarried children unless there are joint sponsors.

Each member of the family will need his or her own DS-230 Application for Immigrant Visa. Each will require an original signature from the beneficiary or derivative beneficiary.


2. Also, seems like once the person makes it to the US, they get the green card within weeks. What about that persons children and spouse who get visas due to derivative status. Do they get green cards at the same time as well or do they just get visas and apply for permanent immigration (green cards) based on the principal sponsor?

Once your sister, her husband and unmarried children enters the US with immigrant visas, they will automatically get green cards. It will take a few weeks for them to get the green cards. Form DS-230 asks for the US address where the immigrants intend to reside and that is the address where the green card will be sent to. Green cards will only be sent to a US address.




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#10 laloo

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Posted 04 September 2009 - 07:49 AM

QUOTE (aaron2020 @ Sep 4 2009, 01:57 AM) <{POST_SNAPBACK}>
QUOTE (laloo @ Sep 4 2009, 01:59 AM) <{POST_SNAPBACK}>
Thanks Aaron! I read that information a few times over the past week but it is quite brief and didn't answer some of the questions that came to mind. I guess I might need to call the NVC for some of those questions.

If anyone has had an experience with a substitue sponsor filing, please share it here.

One of the questions (below) is more general, it comes up for all cases when affidavit of support is filed, so if anyone knows, please post:

1. For the affidavit of support I-864, on line 9, it states "I am sponsoring the following family members immigrating at the same time or within six months of the principal immigrant named in Part 2 above." Am I required to list her husband and children here so they can get derivative visas with her? Is listing them here needed for the derivative visas to be processed?

You will need to list her husband and children on the I-864. The sponsor files a single I-864 for each case. A case is one I-130 petition. So there would be only one I-864 for your sister, her husband and her unmarried children unless there are joint sponsors.

Each member of the family will need his or her own DS-230 Application for Immigrant Visa. Each will require an original signature from the beneficiary or derivative beneficiary.


2. Also, seems like once the person makes it to the US, they get the green card within weeks. What about that persons children and spouse who get visas due to derivative status. Do they get green cards at the same time as well or do they just get visas and apply for permanent immigration (green cards) based on the principal sponsor?

Once your sister, her husband and unmarried children enters the US with immigrant visas, they will automatically get green cards. It will take a few weeks for them to get the green cards. Form DS-230 asks for the US address where the immigrants intend to reside and that is the address where the green card will be sent to. Green cards will only be sent to a US address.



That is great!

Thank you Aaron! Greatly appreciate all your help and guidance!

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#11 pbellrichard

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Posted 13 September 2009 - 05:01 PM

Try reviewing this, too...

http://www.aila.org/...p;linkid=185475

QUOTE
In order to receive humanitarian reinstatement, the beneficiary must submit an affidavit of support by a substitute sponsor. See Immigration and Nationality Act § 213A(f)(5)(cool.gif. See also Johnny Williams, Executive Associate Commissioner, Office of Field Operations, Policy Change – Public Law 107-150, the Family Sponsor Immigration Act of 2002: Use of Substitute Sponsor if Visa Petitioner Has Died, HQADJ 70/21.1.13 (June 15, 2002), available at http://www.uscis.gov...L107_150Pub.pdf, reprinted in 8 Bender's Immig. Bull. (Jan. 1, 2003)


http://www.aila.org/...p;linkid=185475
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#12 Jay349

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Posted 17 December 2009 - 11:53 PM

I have same issue, My mother in law passed away few years ago, the case was in NVC , i called them and asked them about this , they did not gave me any answer but ask me to send them the death certificate which i did and also send them a letter for subtitute pettioner , now when i call them they told me that i need to contact with USCIS and they can give me answer of my questions.
I also recevied the letter for immigration fee but the layer i consulted at that time told me that you will waste the money and case will be denied , this was before i informed the NVC about pettioners death. so i did not deposit the fee but now i m thinking tha was mistake.
should i goto USCIS office and talk with them or phone call will be enough?
if i got the letter for the fees then what you think the case is still open even after the pettioners death and i just need to give subitute name?

your help will be great











QUOTE (laloo @ Sep 3 2009, 05:42 PM) <{POST_SNAPBACK}>
I have a few questions and really hope someone can clarify a few things on the best way to proceed.

My father (petitioner) applied for his daughter's immigration 8-9 years ago. Finally last week we got a letter in the mail that the petition had been forwarded to the NVC. The problem is that the father passed away a few years ago and only now we realized that if the petitioner passes away, the petition is vioded unless one requests it to be reinstated for humanitarian reasons. The brother would like to be the substitute for the affidavit of support so that we can request the petition to be reinstated.

Here are some questions I have, if someone can help, we would really appreciate it:

1. Where should the request for petition reinstatement be sent? In usual circumstances, they say send it to USCIS office, but in this case, we got delayed and the petition has already been forwarded by USCIS office to the NVC. Would it be better to send in the petition reinstatement request to NVC?

2. Since the brother will be the substitute financial sponsor, will the petition now be consider L4 and delayed or will the petition be reinstated as the original L1?

3. For the affidavit of support I-864, on line 9, it states "I am sponsoring the following family members immigrating at the same time or within six months of the principal immigrant named in Part 2 above." Am I required to list her husband and children here so they can get derivative visas with her? Is listing them here needed for the derivative visas to be processed?

4. The letter from NVC also asked for $70 for processing the affidavit of support that the father orignally filed. Now, when I file the substitute affidavit of support, do I need to wait for them to ask me for the processing fee? Or do I just pay the $70 and it will be applied to the petition?

5. The letter also has a DS-3032. Should we fill it out and send it back? Or will they be sending us all these forms etc. again once they accept the substitue sponsor and petition reinstatement? Basically, just want to make sure time is not lost in waiting for them to ask for things again if something can be done now.

I'd really appreciate any advice and help! Thanks!


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#13 aleful

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Posted 18 December 2009 - 09:50 AM

jay,

the NVC doesn't make any decisions, thay just collect the information and they send the file for the interview in your country of origin.

The discretion will be made by the immigration officer that interviews you at the Consulate/Embassy. He/she will decide if they accept or deny your petition, so it can go either way.
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#14 laloo

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Posted 27 January 2010 - 01:42 PM

I have same issue, My mother in law passed away few years ago, the case was in NVC , i called them and asked them about this , they did not gave me any answer but ask me to send them the death certificate which i did and also send them a letter for subtitute pettioner , now when i call them they told me that i need to contact with USCIS and they can give me answer of my questions.
I also recevied the letter for immigration fee but the layer i consulted at that time told me that you will waste the money and case will be denied , this was before i informed the NVC about pettioners death. so i did not deposit the fee but now i m thinking tha was mistake.
should i goto USCIS office and talk with them or phone call will be enough?
if i got the letter for the fees then what you think the case is still open even after the pettioners death and i just need to give subitute name?

your help will be great


It is good that you did not send in the fee because if you had done it without informing them that the petitioner had passed away, it would have been immigration fraud which can result in a long term immigration ban among other things.
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#15 laloo

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Posted 27 January 2010 - 02:20 PM

Here is an update to help those who may encounter the same situation in the future and are looking for info.

First off, the option of requesting for a substitute sponsor is ONLY available if the petition was approved by USCIS BEFORE the death of the petitioner. By APPROVAL, it means that you have received a "Notice of Action (NOA)" from USCIS telling you that the petition is approved (I believe it is usually called NOA2 on these forums). This NOA is usually received within 1-2 years if not earlier, so don't confuse this with other notices (that take many many years) that tell you that petition has been forwarded to NVC etc.


1. Where should the request for petition reinstatement be sent? In usual circumstances, they say send it to USCIS office, but in this case, we got delayed and the petition has already been forwarded by USCIS office to the NVC. Would it be better to send in the petition reinstatement request to NVC?

Since the petition had already been forwarded to NVC, the petition reinstatement request should be sent to NVC (otherwise if the petition was still at USCIS, then one should send this to USCIS). I wasted a month by sending it to USCIS instead of NVC in our case and they sent it back to me saying they had forwarded the case to NVC. Here is the address I had to use in Dec 2009:

National Visa Center
Attn: WC
31 Rochester Ave. Suite 200
Portsmouth, NH 03801-2915

This address was found here: http://travel.state..../info_3177.html

Here are the documents that needed to be sent to them: A letter from the beneficiary pleading for humanitarian reinstatement of petition using a substitute sponsor, copy of petitioner's death certificate, copy of Petition approval notice, the affidavit of support form from substitute sponsor (I-864) and any supporting documents (e.g. copies of tax returns etc.), the birth certificate of substitute sponsor (to show the relation to beneficiary). NVC also asked me to have a cover sheet with NVC case #, name of petitioner, DOB of petitioner, name of beneficiary, DOB of beneficiary (I also wrote USCIS ISL # on the cover sheet as well).

The I-864 is available here: http://www.uscis.gov.../form/i-864.pdf

Once the NVC receives the above, they will forward everything back to USCIS and send you a letter back saying that the petition has been withdrawn due to petitioner's death. Now the USCIS will be deciding whether or not to accept the substitute sponsor. I don't know how long they will take to make this decision.


2. Since the brother will be the substitute financial sponsor, will the petition now be consider L4 and delayed or will the petition be reinstated as the original L1?

Probably, the petition will remain an L1 as orignally filed, but I'm not 100% sure.

3. For the affidavit of support I-864, on line 9, it states "I am sponsoring the following family members immigrating at the same time or within six months of the principal immigrant named in Part 2 above." Am I required to list her husband and children here so they can get derivative visas with her? Is listing them here needed for the derivative visas to be processed?

Yes, need to list husband and children there.

4. The letter from NVC also asked for $70 for processing the affidavit of support that the father orignally filed. Now, when I file the substitute affidavit of support, do I need to wait for them to ask me for the processing fee? Or do I just pay the $70 and it will be applied to the petition?

No, do not pay any fees since the NVC sent this form and request for fee without knowledge of the petitioner's death. If one were to try to play tricks with them and not inform them about the death and pay fees, it will come out later and the penalties for such immigration fraud are very stiff including long term immigration bans. Follow the proper process to request substitute sponsor, any thing received from NVC without them knowing about the petitioner's death is invalid.

5. The letter also has a DS-3032. Should we fill it out and send it back? Or will they be sending us all these forms etc. again once they accept the substitue sponsor and petition reinstatement? Basically, just want to make sure time is not lost in waiting for them to ask for things again if something can be done now.

I did not send the DS-3032. They are using my address for correspondence since it was listed on the envelope and all other items including affidavit of support.

Other references:

Memo allowing substitute sponsor: http://www.uscis.gov...L107_150Pub.pdf


Factors for humanitarian reinstatement (need to use when writing letter requesting reinstatement based on humanitarian reasons, basically it is your job to convince the USCIS to accept the substitute sponse and reinstate the petition): http://www.asianjour...-petitions.html

Edited by laloo, 27 January 2010 - 02:23 PM.

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