My USC wife has died

[walls1010 3]

our sincere condolence to you.

may her soul rest in peace.

[Mina76 0]

Yes, an inforpass would be the best thing to do and explain your situation.

I am so sorry for your lost, my thoughts and prayers are with you and your family.

[Mags 112]

So very sorry for your loss, Daniel.

Kezzie has given you excellent advice here - I'd follow it to the letter.

[JA Tam 7]

Daniel - I am so sorry for your loss; you will be in my thoughts and prayers at this difficult time. Kezzie gave you excellent advice and I am sure that in the end, your 10 yr GC will be issued. I pray for peace for you; may your darling wife Rest in Peace.

[AnneLise+Mark 0]

this is so tragic

I am very sorry for your loss and can't even imagine what you are living

I can't answer any of your questions, just know we are all with you

[sereia 0]

my sincerest condolences to you and your family. there has been great advice here so i won't add anything else other than i'm so sorry! *hugs*

[MaryandMian 1]

Kezzie gave good advice so I would follow the advice of going to an info pass appointment. I was widowed suddenly in 2002 and know that no words I can express can comfort you during this time but my family will be praying for your family.

Mary

[greeneyedgirlfl 0]

My thoughts and prayers go out to you...

[Peggy 1]

So sorry for your loss

[✿Ice Rain✿ 0]

Sorry for loss..Condolence to you and your family.. (L)

[✿Ice Rain✿ 0]

DEATH OF A PETITIONER

Posted on: 1/3/2008

By Attorneys Robert L. Reeves and Jeff L. Khurgel

A primary goal of United States immigration policy should be the reunification of family members. Every day thousands of U.S. citizens and lawful permanent residents file visa petitions to unite their family members. After the filing of a visa petition, a U.S. citizen or lawful permanent resident must wait for the approval of the visa petition and for their visa number to become available. A complicated immigration scenario can emerge when the petitioner dies prior to his family members immigrating to the U.S. or their adjustment of status if in United States. If there is no petitioner left to unite with family members, does the Immigrant Visa Petition die with the petitioner?

The answer depends on when the petitioner passes away and where the petition was filed. Recent guidance from the Immigration Service has reaffirmed the effect of the petitioner’s death on an Immigrant Visa Petition that has not yet been approved. A November 2007 Immigration Service memorandum directs Immigration Officers to deny Immigrant Visa Petitions when the petitioner dies prior to the Immigration Service acting on the visa petition. However, the memorandum also points out that this rule does not apply when the Immigrant Visa Petition is coupled with an application for adjustment of status filed within the jurisdiction of the 9th Circuit Court of Appeal which covers California, Nevada, Arizona, Alaska, Hawaii, Idaho, Montana, Oregon, or Washington or Guam.

In the Ninth Circuit the Immigration Officers are required to follow the Court’s decision in Freeman v. Gonzalez. The Freeman case held that the beneficiary of an immediate relative petition remains eligible even after the death of the petitioner. This controlling precedent allows an immediate relative beneficiary to continue to benefit from the Immigrant Visa Petition despite the death of the petitioner. The petitioner in the Freeman case filed a visa petition with an application for adjustment of status with the USCIS, but died prior to the interview. Thus, the holding applies to cases wherein the beneficiary is in the U.S. and filed for adjustment to permanent resident status. It remains to be seen whether the Freeman case will apply to other than immigrant family visa categories.

If the petitioner dies after the Immigrant Visa Petition has been approved, but before the beneficiary is able to immigrate to the U.S., the death of the petitioner results in the automatic revocation of the Immigrant Visa Petition. The Immigration Service may reinstate the revoked Immigrant Visa Petition for humanitarian reasons (commonly called “Humanitarian Reinstatement”). Humanitarian Reinstatement requires the beneficiary to establish that it would be inappropriate to revoke the application due to certain humanitarian factors. These factors include family ties in the United States and whether there was a special relationship between the petitioner and the beneficiary; health factors including any health concerns relating to the beneficiary's family; financial or educational factors; and any other special factors that should be considered.

Some of these special factors the Immigration Service may consider include the length of time the beneficiary spent waiting for the visa to become current or any special need for the beneficiary in the U.S. like caring for other relatives. It is in the Immigration Service’s discretion to grant Humanitarian Reinstatement, there are several procedural requirements that must be followed in every case. First, a family visa petition may only be reinstated if the visa petition has already been approved. Additionally, the beneficiary must file a written request and attach the appropriate supporting documentation. There is no filing fee, but the request must include, among other things, a comprehensive declaration and supporting documentation.

Widows and widowers have additional legal rights outside of the humanitarian reinstatement or the Freeman case. A statute allows widows or widowers, who were married 2 or more years to a U.S. citizen, to file a self-petition. The self-petition must be filed within 2 years from the death of their U.S. citizen spouse.

The death of a petitioner may destroy the chances of family members to immigrate to the U.S. or if they are in the U.S. to become U.S. permanent residents. For many families the consequences of a petitioner’s death can be tragic and complicated. Although a petitioner’s death may trigger the denial or automatic revocation of an immigrant visa petition, important exceptions may apply. In instances where a petitioner has passed away, it is crucial that the family members ascertain whether they are still eligible to immigrate.

[✿Ice Rain✿ 0]

Does an immigrant visa petition (Form I-130) filed by a U.S. citizen spouse terminate upon the death of the said spouse during the processing period?

The United States Citizenship and Immigration Services (USCIS) says ‘yes’ because the marriage which is the basis of the petition ends with the death of one spouse.

The U.S. Court of Appeals for the 9th Circuit and the federal district courts in New Jersey and in Massachusetts disagree. The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

In Freeman v. Gonzales, the federal appeals court ruled that the widow was still considered a spouse and the death of the petitioner did not invalidate the visa petition. She continued to be eligible for adjustment of status.

In that case, the wife married her U.S. citizen husband abroad in February 2001. In June 2001, she entered the U.S. and three months later, her husband filed an I-130 petition and she filed for adjustment of status.

While the case was pending, the husband died. The USCIS denied the visa petition and adjustment of status application and ordered her to leave the U.S.

The wife appealed. In her appeal, the USCIS argued that the husband’s death before two years of marriage stripped her of immediate relative status as she was no longer considered a spouse.

Citing a provision of the Immigration and Nationality Act, the USCIS argued that the widow could be considered only as an immediate relative eligible for adjustment of status if they had been married for at least two (2) years at the time of the death and were not legally separated.

The federal appeals court said that the USCIS interpretation of the law was wrong. The wife, it said, qualified as the spouse of a U.S. citizen when she filed the necessary forms for adjustment of status and she remained a spouse even after the husband’s death. She was, therefore, still eligible for permanent resident status.

This was also the conclusion made by two federal district courts in New Jersey and in Massachusetts. In Robinson v. Chertoff, the New Jersey federal district court was confronted with similar facts.

Relying on the opinion of the federal court of appeals in Freeman v. Gonzales, the New Jersey court said that the widow had done everything to comply with the regulations for the issuance of an immediate relative visa. “The fortuity of the citizen’s untimely death is too arbitrary and random a circumstance to serve as a basis for denying the petition.”

In the Massachusetts case of Neang v. Chertoff, the federal district court disputed the USCIS definition of spouse. The surviving spouse was still a spouse who outlived the other, the court said, and remained an immediate relative and ought, therefore, to have her immigration application adjudicated as such.

The court noted that it was not fair to punish the widow for the processing delay caused by the high volume of applications filed with the USCIS. It could have scheduled the interview two days before the husband’s death and would most likely have had her status adjusted to permanent resident.

[dbears 1]

I know words will never be enough to overcome the pain of losing someone you love dearly. I hope and pray that God will give you enough strength to go through this times of sorrow.

My heart goes out to you. (F)

[doodlebugg 10]

I am so very very sorry for your loss.

[Angel7422 0]

I am so sorry for your loss.