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I-130 Petitioner’s Death

An American citizen, who marries a foreign national, may begin the process for a spouse’s permanent residency. Step 1 involves filing the I-130 and I-130A petitions for U.S. Citizenship and Immigration Services (“USCIS”) to determine the marital relationship. Sadly, during this process, the U.S. citizen may die, thus leaving the noncitizen spouse as a widow or widower. After an I-130 petitioner’s death, widows and widowers may continue the I-130 process toward permanent resident status.

Death Before USCIS Approves the I-130 Petition

If the petitioner dies after filing the I-130 petition, INA § 204(l) requires that USCIS continue reviewing the petition if the noncitizen resided in the U.S. when the petitioner died and continues to live in America. Indeed, if a petitioner dies before I-130 approval and the widow(er) satisfies 8 C.F.R. 204.2(b)(1) criteria, then USCIS adjudicates the petition as an I-360 Form. INA § 204(l) requires that USCIS continue processing a pending adjustment application (I-485 Form) after an I-130 petitioner’s death. Although USCIS continues processing the forms, USCIS may stop processing the forms if approving the applications will not benefit the public interest.

What Happens if a U.S. Citizen Petitioner Dies Before Filing an I-130 Petition for a Spouse?

If an American citizen spouse dies before filing the I-130 Form, the widow(er) may file a petition for classification as the deceased spouse’s immediate relative. A widow(er) may file a petition if:

  • the couple had been married for at least two years (the deceased spouse must have been a U.S. citizen upon death),
  • the widow(er) must file the petition within two years after the citizen spouse’s death,
  • the deceased-spouse and widow(er) were not legally separated when the citizen died, and
  • the widow(er) did not remarry.

May a Widow(er)’s Child Obtain an Immigration Benefit?

Regulation authorizes USCIS to classify a child as an immediate relative when the agency approves the widow(er)’s immediate relative status. However, U.S. law does not allow a widow(er)’s unmarried son or daughter to obtain derivative classification. For immigration purposes, the Immigration and Nationality Act defines the word “child.” INA § 101(b)(1) defines a child as an unmarried person under age 21 and other criteria. Thus, USCIS distinguishes a child from an unmarried daughter or son over age 21.