Widow’s Option During the I-130 Process

An American citizen, who marries a foreign national, may begin the process for a noncitizen spouse’s permanent residency (obtaining a green card). Step 1 involves filing the I-130 and I-130A petitions for USCIS to determine the marital relationship. Sadly, during the immigration process, the U.S. citizen may die, thus leaving the noncitizen spouse as a widow or widower. What options remain for the foreign national spouse after the petitioner dies?

Death Before USCIS Approves the I-130 and I-130A Petitions

If the petitioner dies after filing the I-130 and I-130A petitions, INA § 204(l) requires that USCIS continue reviewing the petitions if the noncitizen spouse resided in the U.S. when the petitioner died and continues to live in America. Indeed, if a petitioner’s death happens before petition approval, “but, on the date of the petitioner’s death,” the widow(er) satisfies 8 C.F.R. 204.2(b)(1) criteria, then USCIS shall adjudicate the petition as an I-360 Form. See 8 C.F.R. § 204.2(i)(1)(iv). INA § 204(l) also requires that USCIS continue processing a pending adjustment application (I-485 Form) when the petitioner dies. Although USCIS continues processing the forms, section 204(l)(1) authorizes USCIS to 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 and I-130A petitions, 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?

8 C.F.R. § 204.2(b)(4) authorizes USCIS to derivatively classify a child as an immediate relative when the agency also 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 carefully defines the word “child” and distinguishes a child from an unmarried daughter or son.