August 2, 2010: What Happens When The Petitioning Spouse Dies?
What Happens When The Petitioning Spouse Dies?
My spouse died after my I-130 was approved. I was given visitor’s visa to attend the funeral. I spoke to immgration, as well as, visited their office. However, I got two conflicting pieces of information from immigration. One person told me to file I-360, and the other said adjust status by filing I-485 instead. Please advise!
The law regarding widows changed on October 28, 2009 when Congress abolished the “widow penalty.” Now, there is no longer a requirement that the petitioner and beneficiary be married for at least two years before the death.
The procedures for filing for adjustment of status that involve the death of a spouse are fact specific. If a United States citizen petitioner filed an I-130 visa petition and it was approved before the petitioner dies, the approved I-130 visa petition is automatically converted into an approved I-360 petition, assuming the widow otherwise qualifies for the I-360. If the I-130 petition was pending at the time of the petitioner’s death, then that petition will automatically convert to a pending widow I-360 petition.
At this point, it appears that you are eligible to now file an I-485 application with the United States Citizenship and Immigration Service (USCIS), assuming you are otherwise eligible. Instead of filing a Form I-864, Affidavit of Support, you will have to file a Form I-864W, Affidavit of Support Exemption. Moreover, you will have to include all of the other supporting forms, including but not limited to Biographic Information, as well as other supporting documentation required for adjustment of status, including passport photographs, medical exam, etc.
Before you file anything with USCIS, it would be wise to consult with an experienced immigration attorney to ensure you are eligible for adjustment of status.
Michael and Evan Shane, Immigration Attorneys