Immigrant Visa Denied Because of Affadavid of Support, Can I Re-submit?

B

Balkan

Registered Users (C)
Here is my situation,
My father sponsored my under 21 years old brother at the time to come to the U.S.

Visa was approved in September 2010, and he went for an interview before he became 21 ( November 2010). They didn't give him the Visa at the time because they told him they needed original tax returns (not copies), but they did conduct the interview.

I am the co-sponsor- my father does not work.

So I sent them all my original documents, including tax returns for 2009 and 6 months paystubs for 2010. I do not qualify based on 2009 income- that's why I send them paycheck for 6 months for this year.

He went for a f/u today and they denied him, this time because of insufficient income for 2009 ( I was out of work for most of 2009). My brother told me that they didn't even take my paystubs for 2010 showing my income at close to $100K. They told him "these no good". Why would they do that when the form says that this is acceptable way of proving income?

What are my option: should I just re-send him the affidavit of support when I complete my tax returns for 2010? Will they accept it?

Also, my brother seems to think that they told him the visa might not be available another year because it was not issued in 2010? Does this make sense? Can they delay the visa even after I send them a new Affidavit of Support?

Any advice would be appreciated.
 
If you're not self-employed, you should have submitted an official job letter from your company showing how much your salary is.
 
The question is, what can I do now? I am not self- employed- all my income is on my paystub and W2.
 
Your little brother may be a victim of retrogression of visa avilability and have to wait for a visa to once agin become available in his category. At that time, hopefully, he will have the protection of the Child Status Protection Act to avoid age-out consequences. That CSPA is currently again under review in a Class Action Lawsuit in the 9th Circuit Court of Appeals.
 
BigJoe5 said:
Your little brother may be a victim of retrogression of visa avilability and have to wait for a visa to once agin become available in his category. At that time, hopefully, he will have the protection of the Child Status Protection Act to avoid age-out consequences. That CSPA is currently again under review in a Class Action Lawsuit in the 9th Circuit Court of Appeals.
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Based on the information I saw her: http://travel.state.gov/visa/bulletin/bulletin_5228.html you may be right.

Does this mean I cannot sent the tax information now to complete the processing? Or worst yet, does it mean that I have to provide all the documents again when the visa become available?
 
Is your father a US citizen? Did he become a citizen before your brother turned 21?

If yes to both, based on the timelines of events and your brother's age I can say that your brother is protected by the CSPA and will remain as an Immediate Relative, so he doesn't need to worry about visa number availability.

But if your father is not a citizen, it looks like your brother got caught in the Family 2A retrogression. When did your father file the I-130?

Visa was approved in September 2010,...
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No it wasn't! The petition was approved, not the visa. Big difference!!!
 
Jackolantern said:
Is your father a US citizen? Did he become a citizen before your brother turned 21?

If yes to both, based on the timelines of events and your brother's age I can say that your brother is protected by the CSPA and will remain as an Immediate Relative, so he doesn't need to worry about visa number availability.

But if your father is not a citizen, it looks like your brother got caught in the Family 2A retrogression. When did your father file the I-130?


No it wasn't! The petition was approved, not the visa. Big difference!!!
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Good questions.

Father is not a citizen. He is a permanent resident. You are right, the petition was approved.

Since you seem to know what u are talking about, are you able to answer me these questions:

Does this mean I cannot sent the tax information now to complete the processing? Or worst yet, does it mean that I have to provide all the documents again when the visa become available?

I am asking because I want to make sure everything is Ok now and when the visa is available they will just issue it.Or will the start the process from the beginning?
Should I send my brother to the embassy now to hand in 2010 tax returns?
 
What is the Priority Date for your brother's petition (when did dad file the I-130)? Also, what country is involved? If the wait is significant, the I-864 will need up to date income verification. If the most recent income documentation on file at that time is two or three years old, it would have to be updated anyway.
 
Balkan said:
Does this mean I cannot sent the tax information now to complete the processing? Or worst yet, does it mean that I have to provide all the documents again when the visa become available?
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Answer our questions and we'll be closer to figuring out an answer to yours.
 
BigJoe5 said:
What is the Priority Date for your brother's petition (when did dad file the I-130)? Also, what country is involved? If the wait is significant, the I-864 will need up to date income verification. If the most recent income documentation on file at that time is two or three years old, it would have to be updated anyway.
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March 2010.
 
Your father applied in March 2010, and it was approved in September 2010, so that gives your brother an approx 6 month adjustment under the CSPA.

For now your brother is in the Family 2A category, but he will age out when he is 21 years and 6 months old, which would be in May 2011. So unless visa numbers become available again by then (very unlikely) he would get pushed into the Family 2B category which has an 8 year wait! (make that 7 years for him because 1 year has almost been completed)

Or if your father becomes a US citizen, your brother moves into the Family 1st preference category, which has a 6 year wait (5 years left because a year has almost already been used up).

So that makes it an estimated 2016 - 2018 when your brother will have the opportunity for an immigrant visa again based on your father's petition. You definitely will need to provide a new I-864 with new supporting documents.

If you are a US citizen, I would recommend filing another petition for your brother yourself, so if anything goes wrong (again) with the existing case in 5-7 years from now, he can still immigrate a couple years later based on your petition.
 
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Jackolantern said:
Your father applied in March 2010, and it was approved in September 2010, so that gives your brother an approx 6 month adjustment under the CSPA.

For now your brother is in the Family 2A category, but he will age out when he is 21 years and 6 months old, which would be in May 2011. So unless visa numbers become available again by then (very unlikely) he would get pushed into the Family 2B category which has an 8 year wait! (make that 7 years for him because 1 year has almost been completed)

Or if your father becomes a US citizen, your brother moves into the Family 1st preference category, which has a 6 year wait (5 years left because a year has almost already been used up).

So that makes it an estimated 2016 - 2018 when your brother will have the opportunity for an immigrant visa again based on your father's petition. You definitely will need to provide a new I-864 with new supporting documents.

If you are a US citizen, I would recommend filing another petition for your brother yourself, so if anything goes wrong (again) with the existing case in 5-7 years from now, he can still immigrate a couple years later based on your petition.
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You are correct I think. His priority date is March 4th, 2010 and Petition was approved on September 16. His birthday is November 22,1989- so he will remain in the same category until June 2011.

I can't believe how they changed the cutoff dates so much in just one month. In December cutoff date was August 1st, 2010 and in January it goes back to January 1st 2008.

What concerns me more is the fact that they should have approved his visa in December. They don't accept the Affidavit of support because they said they wanted the original ( I had scanned them and send them to my brother). Does anyone know if this is a legitimate reason for denial? I did the same thing for my parents and had no issues whatsoever.

The income reason is really bizarre. I-864 specifically says:

You may include evidence supporting your claim about your expected income for the current year if you believe that submitting this evidence will help you establish ability to maintain sufficient income. You are not required to submit this evidence, however, unless specifically instructed to do so by a Government official. For example, you may include a recent letter from your employer, showing your employer's address and telephone number, and indicating your annual salary. You may also provide pay stub(s) showing your income for the previous six months.


I provided paystubs for 7 months showing my income at $85K. I am just wondering if I should hire an attorney to straighten everything out. I wonder if an attorney can be of help in my case?
 
Balkan said:
You are correct I think. His priority date is March 4th, 2010 and Petition was approved on September 16. His birthday is November 22,1989- so he will remain in the same category until June 2011.

I can't believe how they changed the cutoff dates so much in just one month. In December cutoff date was August 1st, 2010 and in January it goes back to January 1st 2008.
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But look back to January 2010 -- when the cutoff date for family 2A was January 2006.

Historically that category has almost always had a 4-5 year wait. It was a surprising anomaly to see it jump from 2006 to 2008 to 2010 over the space of a few months. Under normal circumstances, your brother would not have been interviewed until sometime in 2014 or later.

They said they jumped forward the dates because eligible individuals were not showing up to apply for adjustment of status or immigrant visas. Apparently they are showing up now in droves, so they moved the dates back.

What concerns me more is the fact that they should have approved his visa in December. They don't accept the Affidavit of support because they said they wanted the original ( I had scanned them and send them to my brother). Does anyone know if this is a legitimate reason for denial? I did the same thing for my parents and had no issues whatsoever.
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I believe they need the original signed document; it's up to their discretion to accept a copy if they want to, but they're not obligated to do so.

The income reason is really bizarre. I-864 specifically says:

You may include evidence supporting your claim about your expected income for the current year if you believe that submitting this evidence will help you establish ability to maintain sufficient income. You are not required to submit this evidence, however, unless specifically instructed to do so by a Government official. For example, you may include a recent letter from your employer, showing your employer's address and telephone number, and indicating your annual salary. You may also provide pay stub(s) showing your income for the previous six months.
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They should have accepted the pay stubs. But perhaps they didn't think the paystubs were sufficient in the absence of an employment letter, and in the absence of the latest tax return showing sufficient income. Notice the instructions says "also", as if to suggest that the paystubs are in addition to, not instead of, the other primary income verification documents.

I provided paystubs for 7 months showing my income at $85K. I am just wondering if I should hire an attorney to straighten everything out. I wonder if an attorney can be of help in my case?
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I seriously doubt it. The consulate is tightly constrained by the visa availability issue. Even if they admit they were wrong to ignore what you already provided, the visa that was earmarked for your brother has already gone to somebody else, and they can't grant one to your brother now.

You say your father doesn't work ... but does he collect a pension or have significant assets? His pension income and assets (if sufficient) can be used for the I-864, which may have made it unnecessary to file your I-864.
 
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Jackolantern said:
Your father applied in March 2010, and it was approved in September 2010, so that gives your brother an approx 6 month adjustment under the CSPA.

For now your brother is in the Family 2A category, but he will age out when he is 21 years and 6 months old, which would be in May 2011. So unless visa numbers become available again by then (very unlikely) he would get pushed into the Family 2B category which has an 8 year wait! (make that 7 years for him because 1 year has almost been completed)

Or if your father becomes a US citizen, your brother moves into the Family 1st preference category, which has a 6 year wait (5 years left because a year has almost already been used up).

So that makes it an estimated 2016 - 2018 when your brother will have the opportunity for an immigrant visa again based on your father's petition. You definitely will need to provide a new I-864 with new supporting documents.

If you are a US citizen, I would recommend filing another petition for your brother yourself, so if anything goes wrong (again) with the existing case in 5-7 years from now, he can still immigrate a couple years later based on your petition.
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Actually, AFAIK, since his brother had already applied for immigrant visa (DS-230), his age is frozen on the date his PD first became available minus the time petition was pending. So, he will remain F2A even if takes forever for his PD to become current.

read this article: http://cyrusmehta.blogspot.com/2010/12/consequences-of-visa-bulletin-cutoff.html
 
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VisaNutz said:
Actually, AFAIK, since his brother had already applied for immigrant visa (DS-230), his age is frozen on the date his PD first became available minus the time petition was pending. So, he will remain F2A even if takes forever for his PD to become current.

read this article: http://cyrusmehta.blogspot.com/2010/12/consequences-of-visa-bulletin-cutoff.html
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That would give the OP's brother another chance in 2013, if the 3-year wait in F2A remains.

However, the case must be kept alive from now until then, because a finalized denial of the current case would require reapplying for an immigrant visa when the PD is current again, and that would push him out of F2A.

So Balkan should still provide the job letter, tax return, and other such supporting evidence soon, in order to stave off a finalized denial. Then provide up-to-date documents again in 2013 (or whenever his brother gets a post-retrogression consular interview).
 
hi i'm surprised to know that your father petitioned your brother last March 2010 and got approved in the same year... that process is really fast. we have the same exact case scenario,but the differences is, mom filed I-130 year 2006 and the petitioned approved in 2009, and last month February 2011 received appointment letter for usem interview. after reading your post im kinda nervous about it, because my mom and her co-sponsors gave me copies only of their ITR, W2 and Pay Stub... now im really really worried about that :( if they told your brother that they need the original copy, by the way where did you submit all the documents required for I-130 petitioned? in u.s or in your brothers country? mine was filed and all the original documents were submitted there in U.S. that's why the appointment letter instruct me to bring copies of ITR on the interview so, if you didn't submit those AOS original copy in U.S surely the consul on your brothers country will definitely ask the original, thats what i think. now my problem is, im scheduled to have my interview this March 14,2011 now this is really kinda out of the topic of yours but i'll appreciate it if you help me, you said your brother is done with the usem interview... can u tell me what did the consul ask your brother in the interview..??? THANKS! and Good luck to your brothers petitioned...!!! GODBLESS US ALL!!! :)
 
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