My USC wife has died

[mamajo 1]

Daniel, I'm so sorry to hear of your loss. My condolences and deepest sympathy to you and your family.

[Maintian 0]

I am so so sorry about your loss. May her soul rest in peace

[~Laura and Nick~ 5]

May she rest in peace always.

I'm so so sorry

[diadromous mermaid 36]

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.

These citations do not apply. This is not the same situation, since the alien in the above case had not yet adjusted status when the petitioner died.

[Nikita2Charles 32]

Our since condoleance, we'll keep you in our prayers. God has brought you 2 together, he will guide you through those rough waters you are going through at this stage. You got some great advice regarding making an infopass appt. Stay strong and keep those lovely memories alive, she couldn't say goodbye due to the sickness but her heart was talking to you in silent.

again our deepest sympathy and condoleances.

[Kez/JWolf 6]

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.

These citations do not apply. This is not the same situation, since the alien in the above case had not yet adjusted status when the petitioner died.

Agreed the OP has already adjusted status and has been married for more than 2 years.... all that is required is for a copy of the death certificate to be forwarded to the service center that is dealing with the Removal of Conditions... in this case Vermont.... This can easly be done by making a infopass appointment at the local USCIS office and taking a copy of the death certificate, they will then forward that on to the service center who will approve or deny based on the evidence that was provided before the OP's sad loss....

Kez

[Mary Lou 681]

I am so sorry for your loss

[*julez* 124]

My sincere condolences for your loss Daniel. I hope you will find peace.

Regarding your question, as numerous others have poited out, Kezzie has provided you with accurate information on how to handle the removal of conditions.

Take care of yourself.

[ED*Riza 0]

Our deepest condolence for the loss...

[eau_xplain 2]

Daniel,

Our most heartfelt condolences for your loss. (F)

[Decius 0]

I also just gave the USCIS phone line a try, it took a lot of menu navigation and hold time but I finally got through to someone who could help, they said to simply notify the processing center by sending a letter and a copy of the death certificate.

I guess its the same thing as getting an Infopass meeting really, only at the moment I am reluctant to get an Infopass meeting as there is so much I need to do here to arrange things after her death and unfortunately we are kind of in a bad spot for regional offices, our closest one is Memphis, TN and we live near Knoxville, thats like a 7hour drive hehe.

Although I might see if I have to make a visit if I can go to one out of state, as we live only 3hours away from the Louisville one in Kentucky, go figure!

[Mags 112]

I also just gave the USCIS phone line a try, it took a lot of menu navigation and hold time but I finally got through to someone who could help, they said to simply notify the processing center by sending a letter and a copy of the death certificate.

Then do this for now. It is pretty much along the lines of what was suggested previously by Kezzie and Becca. It's also probably what an Infopass would tell you to do too.

You have a lot to deal with at the moment and it can seem a little (a lot) overwhelming. Send off a letter explaining what has happened and a copy of the death cert to your processing centre (with all you case details on too, obviously) and then wait.

If you haven't heard anything for a while then make an Infopass.

I really wish you the best in this most sad of situations.

[diadromous mermaid 36]

I also just gave the USCIS phone line a try, it took a lot of menu navigation and hold time but I finally got through to someone who could help, they said to simply notify the processing center by sending a letter and a copy of the death certificate.

Then do this for now. It is pretty much along the lines of what was suggested previously by Kezzie and Becca. It's also probably what an Infopass would tell you to do too.

You have a lot to deal with at the moment and it can seem a little (a lot) overwhelming. Send off a letter explaining what has happened and a copy of the death cert to your processing centre (with all you case details on too, obviously) and then wait.

If you haven't heard anything for a while then make an Infopass.

I really wish you the best in this most sad of situations.

I'd only add that peace of mind might be one of the best ways to be able to place your thoughts where they need to be at this time. So, with that in mind, when you mail off a letter and the death certificate, at least mail them return receipt guaranteed. so you will know at least that they arrived!

[spiderbonge 0]

Hello,

My wife used these forums a lot and got some good advice for preparing and filing the paperwork for my visa, unfortunately my wife passed away last week due to cancer (we only found out she had cancer less than two months ago). Her death has been a tragic blow to me as we had planned the rest of our lives together ...

We had filed all the paperwork last year for the REMOVAL OF CONDITIONS although our center "TEXAS" had a backlog and our application was transferred to Vermont at the beginning of February (before we found out she had cancer).

Obviously I need to inform USCIS of her death, does anyone know if I will have to leave the country or if I will be allowed to stay?

I can`t really find too much information on this situation and while I don`t really want to think about leaving the US atm I need to know what will happen so I can figure out what to do in the future.

Thank you for your time,

Daniel

my condolences to you and your family

[Kathryn41 3,205]

I am so sorry for your loss. I hope that USCIS approves your I-751 asap. Good luck to you.