Most unfortunate scenario!!

[pushbrk 12,127]

... since the petitioner is deceased, and all applicants for PR are required to have a sponsor "what, then, becomes of the I-864" ?

I would say it stays right where it is at the moment and doesn't become an issue until or unless a public charge issue arises.

This is all pretty muddy. Even your citation refers to sending a request "with the petition". The petition is not at the beneficiaries' disposal at the moment, nor is it in the hands of USCIS.

There may or may not be some future consequences for entering the US with the immigrant visas and there may not. I see it as the visa holder's decision whether to deal with the potential issues before or after entering the US. I'm not familiar with any visa beneficiaries who commonly search the FAM to understand all possible ramifications of each possible scenario that could come up. Usually, they just arrange their travel after obtaining the visa.

[Old Dominion 26]

Pushbrk is exactly right. The beneficiary is free to come to the U.S. When it comes time to apply for a GC, that is when a new sponsor must be found. In the words of Beadle Bumble, "the law is an ###, an idiot" but in this case the law is on the OP's side.

[diadromous mermaid 36]

Pushbrk is exactly right. The beneficiary is free to come to the U.S. When it comes time to apply for a GC, that is when a new sponsor must be found. In the words of Beadle Bumble, "the law is an ###, an idiot" but in this case the law is on the OP's side.

Old Dominion,

What makes you believe that the OP would be required to "apply for a GC"? Are we not talking about a Family-preference category that has been subject to priority date for an "Immigrant Visa"?

How does it go? "Ignorance of the law (in this case, the regulations) is no defense"

I'm not familiar with any visa beneficiaries who commonly search the FAM to understand all possible ramifications of each possible scenario that could come up. Usually, they just arrange their travel after obtaining the visa.

[pushbrk 12,127]

Pushbrk is exactly right. The beneficiary is free to come to the U.S. When it comes time to apply for a GC, that is when a new sponsor must be found. In the words of Beadle Bumble, "the law is an ###, an idiot" but in this case the law is on the OP's side.

Old Dominion,

What makes you believe that the OP would be required to "apply for a GC"? Are we not talking about a Family-preference category that has been subject to priority date for an "Immigrant Visa"?

How does it go? "Ignorance of the law (in this case, the regulations) is no defense"

I'm not familiar with any visa beneficiaries who commonly search the FAM to understand all possible ramifications of each possible scenario that could come up. Usually, they just arrange their travel after obtaining the visa.

Right, these would be immigrant visas so there's no "applying for a green card". It just comes in the mail after entry. You're also right that ignorance of the law is no defense but it's unclear whether there will ever be a need for a "defense". If there is, there is a clear path available through a humanitarial appeal. Unless a public charge issue arises, I don't see a defense being needed.

I've seen no citation to convince me that the status of an immigrant visa petition continues to be relevant after a visa is issued. From the best I can tell, it's just an archived file at that point unless there are conditions to be approved.

There's really no argument against what the mermaid is saying but to me, it comes down to what the visa holder wants to do. I equate it to tax filing philosophy. Some folks file cautiously and avoid the possibility of an audit. Some file agressivily in the confidence they can prevail in any audit.

My personal, "not legal" opinion is that an issue (audit-like) MAY apply in the future but that the visa holders have plenty of reason to be confident they would prevail, in the event their status was challenged.

The mermaid is saying their status may well be challenged at some point, and it may. It certainly could be.

I also believe any ultimate ruling would be in their favor, once they're already in the US with green cards in hand. It's far easier to get forgiveness than permission.

Edited December 3, 2008 by pushbrk

[MrsRowe 2]

I don't hear much sorrow in your words for advocating fraud. The visa is revoked by the death of the petitioner. It is these kinds of recommendations and then following these recommendations that makes immigration difficult for the honest people. Mrs. Rowe, you complain about visa wait times and the process, but it is this kind of behavior that has forced the system we now have. Enjoy the system you are helping create. If you come here under illegal pretenses like this you could face a lifetime ban. Consider the consequences carefully.

I am sorry if i may be promoting fraud but if they don't ask anymore questions about the petitioner, just leave. You have your tickets, they don't need to know anything more. I don't believe you have to do AOS when you get here, so no problems there. Just grab you tickets and head out. I am sorry fro your loss.

Where is the fraud actually? The visa has already been issued, their tickets already purchased. WOuld it be fraud if they did not know before the left they boarded the flight? This family has clearly gone through a lot. They have deserve a break. everything is not black and white. By telling me to enjoy the system i create, i think that you are way off line. I have always followed the rules with my petitions but i am human and as an immigrant myself, i know what it feels like to want to move to a place that will better yourself and family. As i said, their visa was already issued, tickets already bought, they do not have to file any futher paperwork with immigration involving the petitioner, i see no fraud. I am sticking to that. I still belive that they should be able to leave.

Ultimately, it is the OP's and his family's decision whether or not they stay or come, we can only make suggestions and give our own opinions. May God bless you all.

[pushbrk 12,127]

I don't hear much sorrow in your words for advocating fraud. The visa is revoked by the death of the petitioner. It is these kinds of recommendations and then following these recommendations that makes immigration difficult for the honest people. Mrs. Rowe, you complain about visa wait times and the process, but it is this kind of behavior that has forced the system we now have. Enjoy the system you are helping create. If you come here under illegal pretenses like this you could face a lifetime ban. Consider the consequences carefully.

I am sorry if i may be promoting fraud but if they don't ask anymore questions about the petitioner, just leave. You have your tickets, they don't need to know anything more. I don't believe you have to do AOS when you get here, so no problems there. Just grab you tickets and head out. I am sorry fro your loss.

Where is the fraud actually? The visa has already been issued, their tickets already purchased. WOuld it be fraud if they did not know before the left they boarded the flight? This family has clearly gone through a lot. They have deserve a break. everything is not black and white. By telling me to enjoy the system i create, i think that you are way off line. I have always followed the rules with my petitions but i am human and as an immigrant myself, i know what it feels like to want to move to a place that will better yourself and family. As i said, their visa was already issued, tickets already bought, they do not have to file any futher paperwork with immigration involving the petitioner, i see no fraud. I am sticking to that. I still belive that they should be able to leave.

Ultimately, it is the OP's and his family's decision whether or not they stay or come, we can only make suggestions and give our own opinions. May God bless you all.

I've seen no reference for the visa being revoked, only the petition being revoked. How is the petition relevant once an immigrant visa is issued. The petition, when approved is simply to allow the beneficiary to apply for the visa. These visas are already appied for and issued.

[Caladan 19]

This one may be worth bouncing off a lawyer before any decision is made. There's a lot riding on this to leave it on a "what if Grandpa had died during flight?" because the answer to that very well could be "we're sorry for your loss, but we find that you're ineligible for the immigration benefits since the petitioner died before you entered." There's all sorts of weird lacunae in the law -- people aging out of eligibility for green cards, spouses on K-3s whose USCs die before filing. Stuff where common sense would say "of course they're going to give your 22-year-old kid the green card, you filed when he was 16, it's not your fault it took so long!" or "no way the US would place a widow in removal proceedings -- it wasn't her fault her husband died before they had to interview!"

Remember the story in the papers a while back about the couple who received a K-1, then married, and then used the K-1, figuring, as many do even on VJ at first, that it wouldn't really matter because after all, they weren't sneaking the wife in or marrying other people or a sham marriage. And it turned out that it did matter, because the marriage made her ineligible to use the fiance visa, whether she knew about it or not, even though she originally had obtained it fairly. They weren't trying to do anything fraudulent, but it left her without a way to adjust status. Ignorance didn't really help them out.

The worry I would have here, based on what mermaid posted, is that something similar might apply in this case. It says the petition is revoked, and that the immigrant can apply for a waiver. But it's not clear what constitutes a revocation, or whether using the visa once the relationship to the US petitioner no longer exists (because of the death) would be like using a fiancee visa after getting married, putting the person at risk for misrepresentation. Or whether it's not an issue, at all, but only if the person files the proper paperwork before leaving. Or whether it's no more an issue than it would be for any other green card holder whose sponsor died after they'd received it.

And I worry because I'm not clear what activating an immigrant visa does, legally. Is it functionally equivalent to a permanent resident crossing the border? Or is it the official last step before one is granted permanent residency?

In any case, a consultation with a lawyer would probably clear this up, or at least let you know what your options are.

[Caladan 19]

pushbrk, this quote from mermaid's link uses the language "approved visa petition" and that it, too, can be "revoked." I quote

The Attorney General may, at any time, for what she deems to be good and sufficient cause, revoke the approval of any family petition under the immediate relative or preference categories. Notice of revocation must be mailed to the petitioner's last known address as well as communicated through the Secretary of State to the beneficiary before he or she enters the United States.

Approval of a visa petition of a relative of a United States citizen or a permanent alien resident is automatically revoked under several circumstances, including death. The petition is revoked, inter alia, based

(B) Upon the death of the petitioner or beneficiary.

© Upon the death of the petitioner unless the Attorney General in her discretion determines that for humanitarian reasons revocation would be inappropriate.

It's not clear from the quote what they mean by "approved visa petition", but I think they mean an approved visa, i.e., they're not saying "denial of pending visa petition", or "revocation of the approval of the I-130", they're saying "revocation of approved visa petition." I could be wrong, but, this is why there are immigration lawyers for these things.

But they do say later down in the article that if the I-130 was approved, they can apply for a humanitarian waiver.

[pushbrk 12,127]

pushbrk, this quote from mermaid's link uses the language "approved visa petition" and that it, too, can be "revoked." I quote

The Attorney General may, at any time, for what she deems to be good and sufficient cause, revoke the approval of any family petition under the immediate relative or preference categories. Notice of revocation must be mailed to the petitioner's last known address as well as communicated through the Secretary of State to the beneficiary before he or she enters the United States.

Approval of a visa petition of a relative of a United States citizen or a permanent alien resident is automatically revoked under several circumstances, including death. The petition is revoked, inter alia, based

(B) Upon the death of the petitioner or beneficiary.

© Upon the death of the petitioner unless the Attorney General in her discretion determines that for humanitarian reasons revocation would be inappropriate.

It's not clear from the quote what they mean by "approved visa petition", but I think they mean an approved visa, i.e., they're not saying "denial of pending visa petition", or "revocation of the approval of the I-130", they're saying "revocation of approved visa petition." I could be wrong, but, this is why there are immigration lawyers for these things.

But they do say later down in the article that if the I-130 was approved, they can apply for a humanitarian waiver.

A visa petition is a visa petition in the purvue of USCIS. In this case the petition is an I-130. The OP now has a "visa". Visa petitions, when approved allow beneficiaries to apply for visas. Once the visa is in hand the purpose of the petition is fulfilled, at least in the case of an immigrant visa.

This is open to interpretation, of course but any potential ramification of using the issued visa are just that, potential. In this case I would say unlikely.

[pushbrk 12,127]

This one may be worth bouncing off a lawyer before any decision is made. There's a lot riding on this to leave it on a "what if Grandpa had died during flight?" because the answer to that very well could be "we're sorry for your loss, but we find that you're ineligible for the immigration benefits since the petitioner died before you entered." There's all sorts of weird lacunae in the law --

I think in this case it boils down to whether one prefers to get permission first or forgiveness later. Clearly a humanitarian waiver is an available path to "forgiveness" in this circumstance and may never be needed anyway.

[Caladan 19]

I'm not meaning to quibble, but the I-130 isn't a visa petition, is the thing. It's the necessary pre-condition to the foreigner being able to file for the visa. E.g., for the K-1 visa, I filled out an I-129F+supplements, the approval of which gave C. the standing to file a DS-156, which was the petition for a non-immigrant visa. Plenty of people get I-130s approved who get denied visas.

They seem to be using "petitioner" to indicate the USC/permanent resident, and "beneficiary" to mean the immigrant. But that leaves it unclear whether the whole petition can be revoked once the "visa petition" is approved, whether that means the I-130, or the whole visa. The fact that DoS is responsible for notifying the beneficiary suggests to me that it is indeed the visa that can be revoked.

<i>I think in this case it boils down to whether one prefers to get permission first or forgiveness later. Clearly a humanitarian waiver is an available path to "forgiveness" in this circumstance and may never be needed anyway.</i>

*Maybe.* We don't know when that path has to be taken (in the country, out of the country), or what other eligibility the person would have to show. And it's still an open question whether entering on the visa would cause other problems (such as an unlawful entry) that the humanitarian waiver itself wouldn't be able to overcome.

My worry, as I said, is that I don't think immigrant visa counts as permanent residency until it's activated, and I'm not sure what that activation entails. If it includes an implicit assumption that all the information in the packet is still current, like it is when you're called for an interview, then it seems like something that would have to be addressed (just as if a sponsor died or lost a job, they'd have to be replaced, and submitting a dead sponsor's I-864 and pretending they're alive could cause problems down the road.)

In any case, I'm not saying "your visa is invalid!" I'm saying that the OP needs more information. Ignorance isn't always bliss when it comes to immigration.

[pushbrk 12,127]

I'm not meaning to quibble, but the I-130 isn't a visa petition, is the thing. It's the necessary pre-condition to the foreigner being able to file for the visa. E.g., for the K-1 visa, I filled out an I-129F+supplements, the approval of which gave C. the standing to file a DS-156, which was the petition for a non-immigrant visa. Plenty of people get I-130s approved who get denied visas.

They seem to be using "petitioner" to indicate the USC/permanent resident, and "beneficiary" to mean the immigrant. But that leaves it unclear whether the whole petition can be revoked once the "visa petition" is approved, whether that means the I-130, or the whole visa. The fact that DoS is responsible for notifying the beneficiary suggests to me that it is indeed the visa that can be revoked.

<i>I think in this case it boils down to whether one prefers to get permission first or forgiveness later. Clearly a humanitarian waiver is an available path to "forgiveness" in this circumstance and may never be needed anyway.</i>

*Maybe.* We don't know when that path has to be taken (in the country, out of the country), or what other eligibility the person would have to show. And it's still an open question whether entering on the visa would cause other problems (such as an unlawful entry) that the humanitarian waiver itself wouldn't be able to overcome.

My worry, as I said, is that I don't think immigrant visa counts as permanent residency until it's activated, and I'm not sure what that activation entails. If it includes an implicit assumption that all the information in the packet is still current, like it is when you're called for an interview, then it seems like something that would have to be addressed (just as if a sponsor died or lost a job, they'd have to be replaced, and submitting a dead sponsor's I-864 and pretending they're alive could cause problems down the road.)

In any case, I'm not saying "your visa is invalid!" I'm saying that the OP needs more information. Ignorance isn't always bliss when it comes to immigration.

Absolutely, the I-130 when used in a visa process is "the visa petition". The DS-230 is "the visa application".

The lack of concrete information for this specific scenario is exactly why using the visa seems ok to me. Permanent residence is "activated" upon US entry using the immigrant visa. LPR status can be revoked and revocation is both appealable and waiverable regardless of current location.

[diadromous mermaid 36]

I'd like to add that the specific situation we are discussing likely happens so very rarely, that there may be nothing articulated in any text we have access to. From visa issuance to boarding the plane might only relate to a handful of days in many cases, after a wait of so many years. So it is conceivable that this particular timing of petitioner dying immediately after visa issuance and prior to departure could be very uncommon.

Nevertheless, no one here seems at all concerned about the question I ahve posed countless times in this thread. Every permanent resident alien in the USA must have a sponsor until he or she has satisfied the 40 calendar quarters, leaves the country, dies or naturalises. What/who/how is that I-864 going to be provided? The petitioner is deceased. Is there a subsitutue sponsor available, regardless of whether arrival in the USA is appropriate without querying whether the alien has a right to come or not, the Affidavit of Support is a deciding factor.

I'm not meaning to quibble, but the I-130 isn't a visa petition, is the thing. It's the necessary pre-condition to the foreigner being able to file for the visa. E.g., for the K-1 visa, I filled out an I-129F+supplements, the approval of which gave C. the standing to file a DS-156, which was the petition for a non-immigrant visa. Plenty of people get I-130s approved who get denied visas.

They seem to be using "petitioner" to indicate the USC/permanent resident, and "beneficiary" to mean the immigrant. But that leaves it unclear whether the whole petition can be revoked once the "visa petition" is approved, whether that means the I-130, or the whole visa. The fact that DoS is responsible for notifying the beneficiary suggests to me that it is indeed the visa that can be revoked.

<i>I think in this case it boils down to whether one prefers to get permission first or forgiveness later. Clearly a humanitarian waiver is an available path to "forgiveness" in this circumstance and may never be needed anyway.</i>

*Maybe.* We don't know when that path has to be taken (in the country, out of the country), or what other eligibility the person would have to show. And it's still an open question whether entering on the visa would cause other problems (such as an unlawful entry) that the humanitarian waiver itself wouldn't be able to overcome.

My worry, as I said, is that I don't think immigrant visa counts as permanent residency until it's activated, and I'm not sure what that activation entails. If it includes an implicit assumption that all the information in the packet is still current, like it is when you're called for an interview, then it seems like something that would have to be addressed (just as if a sponsor died or lost a job, they'd have to be replaced, and submitting a dead sponsor's I-864 and pretending they're alive could cause problems down the road.)

In any case, I'm not saying "your visa is invalid!" I'm saying that the OP needs more information. Ignorance isn't always bliss when it comes to immigration.

Absolutely, the I-130 when used in a visa process is "the visa petition". The DS-230 is "the visa application".

The lack of concrete information for this specific scenario is exactly why using the visa seems ok to me. Permanent residence is "activated" upon US entry using the immigrant visa. LPR status can be revoked and revocation is both appealable and waiverable regardless of current location.

[jundp 191]

Has the OP even cleared up the question of which visa type he and his family have received? This may help.

Also, yes, who will be the sponsor for the required 40 quarters?

To the OP: I wish you luck.

[pushbrk 12,127]

I'd like to add that the specific situation we are discussing likely happens so very rarely, that there may be nothing articulated in any text we have access to. From visa issuance to boarding the plane might only relate to a handful of days in many cases, after a wait of so many years. So it is conceivable that this particular timing of petitioner dying immediately after visa issuance and prior to departure could be very uncommon.

Nevertheless, no one here seems at all concerned about the question I ahve posed countless times in this thread. Every permanent resident alien in the USA must have a sponsor until he or she has satisfied the 40 calendar quarters, leaves the country, dies or naturalises. What/who/how is that I-864 going to be provided? The petitioner is deceased. Is there a subsitutue sponsor available, regardless of whether arrival in the USA is appropriate without querying whether the alien has a right to come or not, the Affidavit of Support is a deciding factor.

I've addressed it but let me be more specific for you. An I-864 has been provided. If they immigrate, before or after the sponsor dies the government and taxpayers are no longer protected. Nobody is going to ask for a new I-864 at the POE. The result is the same no matter when the sponsor dies. We don't send immigrants home because their sponsor dies.

Yes, this is a rare situation, so rare I think they are safe to immigrate, provided they, in there own judgment would be otherwise wise to do so. If they have no prospects, no place to live and would basically be on the street without funds or contacts, they would be foolish to leave their current homes. If, on the other hand, they have family, contacts and prospect they're comfortable with, go for it.