DEATH OF HUSBAND AFTER ARRIVAL OF K1

[nane1104 146]

Land of oppurtunity. its global market how about the earth of oppurtunity. appreciate your honesty though. sounding like she neede to get a work or business visa instead of swimming the river of "im going to marry and old fart" visa.

Uh oh, aren't we a little judgemental here? Who said the guy was old or she just married him for the opportunity to be in the US? Heartconditions are not age related!

I have to say though, I think if I was in that situation, I would just want to go back to my homecountry where I would have the comfort and support of friends and family to help me through the time of grieve.

However, this lady might not have a home to go back to. I don't really see a (legal) way for her to stay in the US though longterm.

[Niels Bohr 72]

This thread is not about SSI. It's focusing on helping the spouse obtain status to legally live in the US. SSI is a means to support living which she's not concerned about it at the moment. What good is retirement when she cannot live here.

Edited April 17, 2008 by consolemaster

[pushbrk 13,116]

This thread is not about SSI. It's focusing on helping the spouse obtain status to legally live in the US. SSI is a means to support living which she's not concerned about it at the moment. What good is retirement when she cannot live here.

While the purpose of the thread was to discuss the spouse's options for remaining in the US, it was quickly put to bed. She will not be allowed to stay with legal status. SSI doesn't help her live her but having the income will be good no matter where she lives. If she's entitled to it, helping her secure it is probably the best any of us could do for her at this time.

[rebeccajo 14]

I agree completely but there seems to be an unspecified period of limbo as to her status. She fulfilled the terms of the visa by getting married and had the USC husband lived, there's no specific time frame within which the AOS must be filed. I'm curious just how long she could stay without triggering a bar. Probably there's no hard and fast answer.

As far as I am aware, if she departs within 179 days of the expiry date of her I94, no bar is incurred.

[sunray248 0]

A final update on this case for future readers.

After Tom's death, she applied for the self petition (I-360 I believe). It was denied last week at the interview. She has been given 180 days to leave the country.

I'd like to thank all for their input and help in this matter.

Edited February 19, 2009 by sunray248

[MMW 2]

This is terrible. But it raises a question that I have had in the back of my mind. We will be getting a IR-1 visa (10 yr GC) when my wife is approved. What if a similar situation happens to her after arriving in the states? would she be allowed to stay since her GC would be for 10 yrs and then would she have a chance to apply for her citizenship after 3 yrs?

[payxibka 10,047]

This is terrible. But it raises a question that I have had in the back of my mind. We will be getting a IR-1 visa (10 yr GC) when my wife is approved. What if a similar situation happens to her after arriving in the states? would she be allowed to stay since her GC would be for 10 yrs and then would she have a chance to apply for her citizenship after 3 yrs?

in this situation citizenship is possible after 5 years (not three)

[diadromous mermaid 36]

The matter in the case of death of a USC rests upon whether the marriage was 2 years old prior to the USC dying.

This is terrible. But it raises a question that I have had in the back of my mind. We will be getting a IR-1 visa (10 yr GC) when my wife is approved. What if a similar situation happens to her after arriving in the states? would she be allowed to stay since her GC would be for 10 yrs and then would she have a chance to apply for her citizenship after 3 yrs?

[pushbrk 13,116]

The matter in the case of death of a USC rests upon whether the marriage was 2 years old prior to the USC dying.

This is terrible. But it raises a question that I have had in the back of my mind. We will be getting a IR-1 visa (10 yr GC) when my wife is approved. What if a similar situation happens to her after arriving in the states? would she be allowed to stay since her GC would be for 10 yrs and then would she have a chance to apply for her citizenship after 3 yrs?

Well, the matter can rest on more than one thing. For the original case discussed, no AOS was filed before the USC died.

For the new question, IR1 status assures the marriage is at least two years in duration, so the immigration impact is exactly as described by Pay, citizenship eligibility in five years instead of three.

Are you saying the original case would have been successful had the couple been married two years before the USC's death, even with no AOS filed?

[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.

From, Source.

Also, Freeman case

*****

The matter in the case of death of a USC rests upon whether the marriage was 2 years old prior to the USC dying.

This is terrible. But it raises a question that I have had in the back of my mind. We will be getting a IR-1 visa (10 yr GC) when my wife is approved. What if a similar situation happens to her after arriving in the states? would she be allowed to stay since her GC would be for 10 yrs and then would she have a chance to apply for her citizenship after 3 yrs?

Well, the matter can rest on more than one thing. For the original case discussed, no AOS was filed before the USC died.

For the new question, IR1 status assures the marriage is at least two years in duration, so the immigration impact is exactly as described by Pay, citizenship eligibility in five years instead of three.

Are you saying the original case would have been successful had the couple been married two years before the USC's death, even with no AOS filed?

[TBoneTX 46,124]

The U.S. Court of Appeals for the 9th Circuit and the federal district courts in New Jersey and in Massachusetts disagree.

Do these decisions bode well, then, for those who find themselves in similar pickles? Perhaps this question should be "How well do these decisions bode..."

[clairehair 0]

I don't wish to be heartless but why would anyone want to stay in the US after losing their spouse, especially after being here such a short time. I can see why they might be deported. Wanting to be here to be with someone you love is one thing but battling to stay after being here for such a short time once they have gone , really throws up some questions as to why they were here in the first place. If I had lost my husband after having been here for a few months the I would have been on the first plane home after the funeral. I could understand it after a few years when they might have bought property together or have a job or even had some children. I think the UCIS might be thinking the same thing. I understand that she may have given up everything in her home country but starting again in your own country is still going to be easier than starting again in a foreign country.

I am hoping for some positive information.

A friend of mine sponsored his K1 fiance.

After she arrived here into the us,

unfortunately he had to be admitted to the hospital and operated on.

right before the operation they got married

after the operation he suffered a heart attack, and is now in a coma.

He is not expected to survive.

He did not have time to submit the paperwork (I130 I485) though they were trying to complete it before the operation he underwent

what options does she have? with the death of her husband does her legal right to stay in the states terminate?

any help is appreciated.