Complicated I-864 problem

[JimVaPhuong 4,863]

I can usually figure this stuff out on my own, but this one I'm not sure about. This is a real situation - not hypothetical - involving a member of my wife's extended family.

One of my wife's uncles, a US citizen, filed a petition for his adult married daughter in Vietnam. In addition to her husband, she also has a child, so there are a total of 3 immigrants. Her priority date became current last year. Shortly after that, my wife's uncle, the petitioner, died in a car accident. Two weeks later NVC sent the I-864 fee bill.

Ok, obviously a substitute sponsor is called for here. The immigrant's half-sister, who is a US citizen by birth, is willing to be the substitute sponsor. Proving she's a qualifying relative is complicated, but I won't even get started on that. The problem - she has a family of five, and an annual income of $40K. When you add the three immigrants, her household size is 8, meaning her income is about $6K short. The million dollar question - can a substitute sponsor use a joint sponsor?

[VanessaTony 3,567]

I would say so. My reason for thinking so is that though she's a "substitute" she's still a sponsor and the requirements for her would be the same for the previous sponsor. Meaning if he would have been allowed to have a co-sponsor, so can the substitute. Is the annual income the household income? Does she have a household member that can do an I-864A? I would think that would be preferable because it feels less like a "co-sponsor" thing though it kinda is. Even if she doesn't, I'm sure she'd be fine.

I also think it would be considered penalising her by stopping a co-sponsor. It's not her fault (or his) that he passed. I think they just make the application like it was the half-sister applying all along and she would have used a co-sponsor which is fine

Hope that helps

[JimVaPhuong 4,863]

I would say so. My reason for thinking so is that though she's a "substitute" she's still a sponsor and the requirements for her would be the same for the previous sponsor. Meaning if he would have been allowed to have a co-sponsor, so can the substitute. Is the annual income the household income? Does she have a household member that can do an I-864A? I would think that would be preferable because it feels less like a "co-sponsor" thing though it kinda is. Even if she doesn't, I'm sure she'd be fine.

I also think it would be considered penalising her by stopping a co-sponsor. It's not her fault (or his) that he passed. I think they just make the application like it was the half-sister applying all along and she would have used a co-sponsor which is fine

Hope that helps

Yes, the $40K is the household income. The five household members include the half-sister, her unemployed husband and three minor children. There are no other dependents or qualifying relative household members with income who could submit an I-864A.

The thing about a substitute sponsor is that they don't become a substitute petitioner. By law, the petition dies when the petitioner dies. The law has always allowed the petition approval to be reinstated for humanitarian reasons if an appeal is filed by the beneficiary. One of the most compelling humanitarian reasons is family reunification. This scenario is even given as a prime example in the AFM. The beneficiary, in this case, has numerous family members in the US. She is the only one of her father's children who does not currently live in the US. Even her mother and step-mother live in the US. I drafted the letter of appeal on her behalf based on a lot of research into the criteria USCIS will use to adjudicate the appeal. She has the letter now, and it will be coming back with my wife's sister later this month.

If the appeal is accepted then the original petition approval is reinstated. The point is that the substitute sponsor is substituting only to meet the public charge requirement of INA 213A. The visa is still issued based on the original petition. The half sister could certainly submit her own petition, but the wait for an FB4 is currently about 10 years.

A conflict arose when the INA was revised in 1997, adding section 213A. This section required an enforceable affidavit of support from the petitioner. So, although the INA allowed for humanitarian reinstatement of the petition approval, section 213A made it virtually impossible to complete the visa process because a dead petitioner cannot sign an affidavit of support. Congress fixed this conflict with the Family Sponsor Immigration Act of 2002. This act allowed for a qualifying relative to serve as a substitute sponsor for the deceased petitioner.

I've been able to find guidance from USCIS regarding how they consider an appeal for humanitarian reinstatement. I've also found guidance for how they consider a qualifying relative as a substitute sponsor. What I've not been able to find is any guidance for considering a joint sponsor when the substitute sponsor cannot submit a sufficient affidavit of support.

The real "gotcha" here is that the decision, once made, is final and cannot be appealed, so we've got one chance to get this right.

None of the other qualifying relatives have nearly enough income to qualify as sponsors. Many of them have already sponsored other family members, and so have a large household size in the eyes of USCIS. The half-sister is the best qualified. Her mother, the beneficiary's step-mother, has higher gross income, but she's self-employed and has little taxable income on line 22 of her tax return. There are extended family members, including myself, who cannot be substitute sponsors because they are not qualifying relatives, but they are qualified to submit a sufficient affidavit of support as a joint sponsor. All I need now is confirmation that a substitute sponsor can have a joint sponsor.

I've spoken with two immigration attorneys about this. Both told me that they honestly didn't know. Neither had ever handled a substitute sponsor case before.

[VanessaTony 3,567]

Wow. She doesn't have assets she can use to make up the difference? One chance to get it right... that's intense... Maybe Push would know? I mean if you don't know then wow.. umm I'll google. I'll see if I can find something.

Here: http://www.callyourlawyers.com/iblog/B1833440738/C1075917879/E1624572858/index.html this entire page discusses what happens when a sponsor dies. This section:

"New Affidavit of Support Requirement

§ 551 of IIRAIRA created new § 213A of the INA which requires all persons who wish to sponsor immigrants to the United States to executive an affidavit of support on the family member's behalf.

The interim rule provides that the person who filed an immigrant visa petition must execute an affidavit of support on Form I-864 on behalf of the intending immigrant.6 If this person is unable to meet the minimum income requirement, a joint sponsor may execute a separate affidavit of support. "

So because this page is about death of a sponsor, because it mentions substitute sponsors, and because it also specifically mentions joint-sponsors, it looks like you can. I could be wrong. You're smarter than me so you tell me

Edited January 14, 2011 by Vanessa&Tony

[JimVaPhuong 4,863]

Wow. She doesn't have assets she can use to make up the difference? One chance to get it right... that's intense... Maybe Push would know? I mean if you don't know then wow.. umm I'll google. I'll see if I can find something.

Here: http://www.callyourlawyers.com/iblog/B1833440738/C1075917879/E1624572858/index.html this entire page discusses what happens when a sponsor dies. This section:

"New Affidavit of Support Requirement

§ 551 of IIRAIRA created new § 213A of the INA which requires all persons who wish to sponsor immigrants to the United States to executive an affidavit of support on the family member's behalf.

The interim rule provides that the person who filed an immigrant visa petition must execute an affidavit of support on Form I-864 on behalf of the intending immigrant.6 If this person is unable to meet the minimum income requirement, a joint sponsor may execute a separate affidavit of support. "

So because this page is about death of a sponsor, because it mentions substitute sponsors, and because it also specifically mentions joint-sponsors, it looks like you can. I could be wrong. You're smarter than me so you tell me

That's an excellent article. Thanks!

The half-sister owns a home, but like about 1/3 of Californians her mortgage is 'under water', meaning she owes more than the market value of the home.

The article is clear that the petitioner can use a joint sponsor, but not clear about whether the substitute sponsor can use a joint sponsor. I'm still going to try to find further confirmation of this.

The article did confirm that the only recourse after a denial is a suit filed in federal court, which is pretty much what I had previously found out. I was also surprised to see that humanitarian reinstatement is more likely if the beneficiary is a spouse or child already living in the US and they are applying for adjustment of status, and less likely if the beneficiary is an adult living abroad with their own family. I read the director's memo the article's author cited, and I didn't see anything related to that in the memo. Nonetheless, the author cited Ba Lun Tan v. David N. Ilchert, which is not completely unlike this case in that it involves adult married children of the deceased petitioner. In that case, humanitarian reinstatement was denied, and the denial was upheld in a federal district court. What's even more worrying is that the court indicated that the substitute sponsor was qualified to submit a new petition on the beneficiary's behalf, which is the same in this case. That would suck if they told her she had to wait another 10 years.

The article also said that a humanitarian request should appeal on the grounds of hardship. Again, that didn't come up in my research, and I didn't try to make that case in the letter I wrote. I was going strictly by guidance in the AFM about family reunification because I thought she had a strong case on that basis. I might need to revise the letter and send it to the beneficiary before my wife's sister returns from Vietnam.

I'm going to go over the information in the article with my wife's uncle (no, not the one that died) and see what he thinks about this.

Thanks again!

[VanessaTony 3,567]

I THINK I'm about to make your day....

Here: http://shusterman.com/pdf/groundsofindadmissibility2003.pdf page 8

"Substitute Sponsors

•Use of household income and assets: Like a joint sponsor, a substitute sponsor may use the income and/or assets of qualified household members who have signed a Form I-864A.

•Joint sponsor:may be used if the substitute sponsor does not satisfy the income/assets requirement."

This says 100% clearly that a substitute sponsor can use a joint sponsor. The only issue I have is if it's too old (from 2003) and it says it's done by "BCIS Office of Adjudications" but I don't know who/what that is. I hope it's reliable.

Good luck!

**Edit - I assume you have this memo/press release but just in case you don't: http://www.uscis.gov/files/pressrelease/PL107_150Pub.pdf

Also turns out this is BCIS: "..services formerly provided by the Immigration and Naturalization Service (INS) transitioned into the Department of Homeland Security (DHS) under the Bureau of Citizenship & Immigration Services (BCIS)." as described here: http://www.uscis.gov/files/pressrelease/First100Days_061003.pdf so I think that PDF is official!! Lets hope so

Edited January 14, 2011 by Vanessa&Tony

[VanessaTony 3,567]

.. sorry duplicate. Internet issues today

Edited January 14, 2011 by Vanessa&Tony

[JimVaPhuong 4,863]

I THINK I'm about to make your day....

Here: http://shusterman.com/pdf/groundsofindadmissibility2003.pdf page 8

"Substitute Sponsors

•Use of household income and assets: Like a joint sponsor, a substitute sponsor may use the income and/or assets of qualified household members who have signed a Form I-864A.

•Joint sponsor:may be used if the substitute sponsor does not satisfy the income/assets requirement."

This says 100% clearly that a substitute sponsor can use a joint sponsor. The only issue I have is if it's too old (from 2003) and it says it's done by "BCIS Office of Adjudications" but I don't know who/what that is. I hope it's reliable.

Good luck!

**Edit - I assume you have this memo/press release but just in case you don't: http://www.uscis.gov/files/pressrelease/PL107_150Pub.pdf

Also turns out this is BCIS: "..services formerly provided by the Immigration and Naturalization Service (INS) transitioned into the Department of Homeland Security (DHS) under the Bureau of Citizenship & Immigration Services (BCIS)." as described here: http://www.uscis.gov/files/pressrelease/First100Days_061003.pdf so I think that PDF is official!! Lets hope so

Yes, thank you. This is exactly what I was looking for.

USCIS was briefly called BCIS after DHS was created. They are the same agency. It's probably reliable, in spite of it's age. It looks to be a PDF of a PowerPoint slide presentation that USCIS was using as a training aid.

Yes, I have a copy of that memo from USCIS.

Now I'm beginning to wonder how much credence to give to that Perry & Baker article you linked to before. Several things in that article seem to be in conflict with current USCIS policy. That could be because the article was originally from 2003, before the final rule was published. For example, that article indicates that they are far more likely to approve humanitarian reinstatement if the beneficiary is the surviving spouse or child of the petitioner, and they are already in the US seeking adjustment of status. However, USCIS policy memorandum HQRPM 70/21.1.13, July 27, 2006, says that the final rule for implementing FSIA contained a special exception for the surviving spouse - their petition automatically converts to an I-360 for the widow of a US citizen, so humanitarian reinstatement isn't necessary.

I'm going to see if I can find some recent cases involving humanitarian reinstatement, specifically cases where reinstatement was denied. If it's true that they tend to deny if the beneficiary is a married adult living abroad then I'm going to have to figure out if there's a hardship angle here. I think I'm going to recommend that her half-sister go ahead and file an I-130 since it can take a couple of years for a humanitarian reinstatement to be adjudicated, and it would be a shame to lose those years entirely. Unfortunately, her mother is an LPR so she can't petition for a married adult daughter. Her step-mother is a US citizen, but proving the family relationship would be difficult as there are a couple of common law marriages involved here. Proving the relationship with the half-sister was difficult for the same reason - the deceased petitioner father was not listed on the half-sister's birth certificate. Fortunately, there was a paternity case back in 1993 for child support, and the father and half-sister had to submit DNA to prove paternity. We've got a copy of that DNA test.

Like I said, it's complicated.

[JimVaPhuong 4,863]

Ok, I'm going to resurrect this old thread to post an update...

The humanitarian reinstatement in this case was denied. The substitute sponsor was not the issue. The fact that the beneficiary had married and started a family in Vietnam was the principal reason for the denial. Apparently, it's true that they tend to deny if the beneficiary has married and is living with their spouse and children in their home country.

Here are some excerpts from the denial notice:

This notice is in reference to the Petition for Alien Relative that was filed by the petitioner on behalf of <beneficiary's name> and approved by the Director of the California Service Center on <date>.

The above-reference petition is automatically revoked as of the date of it's approval because the petitioner is deceased. Furthermore, it has not been established that a favorable decision is warranted based on humanitarian grounds pursuant to 8 CFR 205.1(a)(3)(i)(C

)(2).

A favorable discretionary decision is warranted when compelling factors exist. Upon review of the record, such factors have not been established. Therefore, a favorable determination after such humanitarian consideration will not be given.

...

USCIS will assess eligibility for reinstatement based on the following factors that have been traditionally considered:

1. The impact of revocation on the family unit in the United States, especially on U.S. citizen or LPR relatives or other relatives living lawfully in the U.S.;

The beneficiary's immediate family resides with her in Vietnam therefore there is no disruption of an established family unit.

2. The beneficiary's advance age or poor health.

This issue was not discussed.

3. The beneficiary's having resided in the U.S. lawfully for a lengthy period.

This issue was not discussed.

4. The beneficiary's ties to his or her home country.

The beneficiary has a spouse and daughter in Vietnam.

5. Significant delay in processing the case after approval of the petition and after a visa number has become available, if the delay is reasonably attributable to the Government rathern than the alien.

This issue was not discussed.

6. Family ties in the U.S.

While the beneficiary has some family in the United States her spouse and daughter reside in Vietnam.

The evidence of record has been reviewed in its entirety and all factors have been considered. The evidence does not establish that a favorable discretionary decision is warranted. A favorable decision is to be given only to an alien when compelling factors exist. Such has not been established.

...

There is no appeal to this decision. However, pursuant to 8 C.F.R. 103.5, a motion can be filed on Form I-290B. Such motion must be accompanied by the proper filing fee and filed within 30 days of this notice.

Items 1 and 6 were the primary bases we used for the humanitarian reinstatement request. All of her siblings and her mother are already in the US. She was the only member of her father's immediate family who had not immigrated yet. We even quoted the Adjudicators Field Manual on this point, since her situation seemed to exactly match the scenario described there. Apparently, USCIS saw things differently. In their eyes, she may have been a member of her father's immediate family but her father wasn't a member of hers. Her immediate family was her spouse and child in Vietnam.

The denial letter was sent to the substitute sponsor, who forwarded a copy to my wife's uncle. The substitute sponsor had moved since the original request was sent to NVC to return the petition to USCIS. In spite of asking them twice to update their records, they still sent the denial notice to the wrong address. By the time she received it the window of opportunity for filing an I-290B had already expired. I think my wife's uncle is going to see if it's possible to get them to accept a late filed motion to reopen based on the fact that USCIS sent the notice to the wrong address. Even if they accept the motion to reopen, I see little chance of it succeeding. We have no new evidence to submit. USCIS understands the facts in the case, and they denied based on those facts.

Anyway, maybe this will be of some use to someone else in a similar situation.

[Worried2012 1]

Ok, I'm going to resurrect this old thread to post an update...

The humanitarian reinstatement in this case was denied. The substitute sponsor was not the issue. The fact that the beneficiary had married and started a family in Vietnam was the principal reason for the denial. Apparently, it's true that they tend to deny if the beneficiary has married and is living with their spouse and children in their home country.

Here are some excerpts from the denial notice:

This notice is in reference to the Petition for Alien Relative that was filed by the petitioner on behalf of <beneficiary's name> and approved by the Director of the California Service Center on <date>.

The above-reference petition is automatically revoked as of the date of it's approval because the petitioner is deceased. Furthermore, it has not been established that a favorable decision is warranted based on humanitarian grounds pursuant to 8 CFR 205.1(a)(3)(i)(C

)(2).

A favorable discretionary decision is warranted when compelling factors exist. Upon review of the record, such factors have not been established. Therefore, a favorable determination after such humanitarian consideration will not be given.

...

USCIS will assess eligibility for reinstatement based on the following factors that have been traditionally considered:

1. The impact of revocation on the family unit in the United States, especially on U.S. citizen or LPR relatives or other relatives living lawfully in the U.S.;

The beneficiary's immediate family resides with her in Vietnam therefore there is no disruption of an established family unit.

2. The beneficiary's advance age or poor health.

This issue was not discussed.

3. The beneficiary's having resided in the U.S. lawfully for a lengthy period.

This issue was not discussed.

4. The beneficiary's ties to his or her home country.

The beneficiary has a spouse and daughter in Vietnam.

5. Significant delay in processing the case after approval of the petition and after a visa number has become available, if the delay is reasonably attributable to the Government rathern than the alien.

This issue was not discussed.

6. Family ties in the U.S.

While the beneficiary has some family in the United States her spouse and daughter reside in Vietnam.

The evidence of record has been reviewed in its entirety and all factors have been considered. The evidence does not establish that a favorable discretionary decision is warranted. A favorable decision is to be given only to an alien when compelling factors exist. Such has not been established.

...

There is no appeal to this decision. However, pursuant to 8 C.F.R. 103.5, a motion can be filed on Form I-290B. Such motion must be accompanied by the proper filing fee and filed within 30 days of this notice.

Items 1 and 6 were the primary bases we used for the humanitarian reinstatement request. All of her siblings and her mother are already in the US. She was the only member of her father's immediate family who had not immigrated yet. We even quoted the Adjudicators Field Manual on this point, since her situation seemed to exactly match the scenario described there. Apparently, USCIS saw things differently. In their eyes, she may have been a member of her father's immediate family but her father wasn't a member of hers. Her immediate family was her spouse and child in Vietnam.

The denial letter was sent to the substitute sponsor, who forwarded a copy to my wife's uncle. The substitute sponsor had moved since the original request was sent to NVC to return the petition to USCIS. In spite of asking them twice to update their records, they still sent the denial notice to the wrong address. By the time she received it the window of opportunity for filing an I-290B had already expired. I think my wife's uncle is going to see if it's possible to get them to accept a late filed motion to reopen based on the fact that USCIS sent the notice to the wrong address. Even if they accept the motion to reopen, I see little chance of it succeeding. We have no new evidence to submit. USCIS understands the facts in the case, and they denied based on those facts.

Anyway, maybe this will be of some use to someone else in a similar situation.

Jim this is really sad. I would kindly like to know if how long did the decision letter from USCIS California arrive? Was it 2 or 3 months from the time the request for humanitarian reinstatement was mailed to them by your niece (which is the beneficiary)? In fact in their humanitarian reinstatement letter, they also stated about the other humanitarian reasons not only limited to the 6 common issues, did you utilize other reasons too? Please answer. Thanks.