Change of Status as Widower

[tenyearwait 4]

I-485 Change of Status as the husband of a U.S. Citizen. On the day that USCIS mailed a notice scheduling our interview, my wife died

She was my Petitioner and the sole sponsor on the Affidavit of Support. We had been married over 10 years. Two of my applications (Employment Authorization, Travel Document) are complete. There remain only the I-130 and the I-485.

I understand that when I send CIS local field office a copy of the death certificate, I do not have to file I-360 because the I-130 is automatically changed into the I-360 without action by me. However, when I called the helpline, they kept asking if the I-130 has been approved. I am puzzled. Surely no progress is made on the I-485 unless the I-130 is approved. However, on My Case Status, the I-485 status shows as "Testing and Interview" whereas the I-130 shows as "Initial Review" - I have never received a notice that the latter was approved.

As advised on the helpline, I have made an InfoPass appointment at my local field office for next week to confirm what I need to do. I have two problems:

1. If the conversion of the I-130 to an I-360 depends on the I-130 already being approved, I am going to be in trouble - any suggestions what I say at the InfoPass appointment?

2. The helpline escalated my question to Tier 2 where the officer stated some things which the website shows clearly aren't true. However, he was unable to tell me whether or not I still require an Affidavit of Support. I have been told by another alien that this is ignored as asking someone to promise to pay back a later claim for a means tested benefit is irrelevant because the benefit won't be approved anyway. But if I MUST provide the Affidavit which my wife signed, I cannot at this moment provide evidence of 125% of the Poverty Guideline. Before this was my wife's income plus some of mine. Without hers, I cannot make it. However, being 60 years old, Social Security have told me that I am qualified for Survivor's Benefit which would provide the required extra income. However, they say that I will not be entitled to it until I get my Green Card. Catch-22 = with the Green Card I can get the extra income but without the income I cannot get the Green Card. I cannot get a co-sponsor who has the qualifying income. Any suggestions? Do I need the 125% or is the Affidavit no longer required?

Thanks in advance for your help.

[JimVaPhuong 4,863]

If the I-130 had been approved on the date of the petitioner's death then it must be treated as an approved I-360. If the I-130 has not been approved on the date of the petitioner's death then it's treated as a properly filed I-360, and adjudicated on that basis.

Note that in order to be eligible you must have been married at least two years, you must not have been legally separated at the time of the petitioner's death, and you must not have remarried. If you self-petition by filing your own I-360 then you must submit the petition within two years of the US citizen spouse's death.

Since you didn't receive a notice of the I-130 being approved then you can probably assume that it hasn't been, so the I-130 is going to be adjudicated as if it were a pending I-360.

[Christi and Ian 24]

Its been a long time since I've been on here, and I have forgotten a lot, but what I do remember is that once our petition was approved, on the USCIS website the I-130 status went from "Pending", backwards to "Initial Review". I received the NOA2 for the I-130 in the mail a few days later. I don't know why they move it backwards in the system once it's been approved, it must be some carefully guarded USCIS secret...but it had me panicked until I got the approval letter. Hope this helps. x

-CJ

[tenyearwait 4]

If the I-130 had been approved on the date of the petitioner's death then it must be treated as an approved I-360. If the I-130 has not been approved on the date of the petitioner's death then it's treated as a properly filed I-360, and adjudicated on that basis.

Note that in order to be eligible you must have been married at least two years, you must not have been legally separated at the time of the petitioner's death, and you must not have remarried. If you self-petition by filing your own I-360 then you must submit the petition within two years of the US citizen spouse's death.

Since you didn't receive a notice of the I-130 being approved then you can probably assume that it hasn't been, so the I-130 is going to be adjudicated as if it were a pending I-360.

Thanks for the reply. That was what I assumed. The only thing that is very puzzling is why, if the I-130 is still on "Initial Review", USCIS would process the I-485. I mean without the I-130 being approved, there is no legal basis for the I-485 to be considered. Why not? Because the U.S. Citizen only has the right to petition the government to allow his/her spouse to be granted legal permanent residence, not the right for it to be granted.

I guess that it may be because most of the documents are only copies which means that until the interview where originals can be viewed, theoretically they can still consider that the U.S. Citizen has not yet PROVED their citizenship.

Anyway, I will go to the InfoPass appointment assuming that the I-130 is not approved and therefore the I-360 automatically has the same status "Initial Review".

[tenyearwait 4]

Its been a long time since I've been on here, and I have forgotten a lot, but what I do remember is that once our petition was approved, on the USCIS website the I-130 status went from "Pending", backwards to "Initial Review". I received the NOA2 for the I-130 in the mail a few days later. I don't know why they move it backwards in the system once it's been approved, it must be some carefully guarded USCIS secret...but it had me panicked until I got the approval letter. Hope this helps. x

-CJ

That doesn't seem to have happened to me. If you are referring to actual Notices you received in hard copy, it is puzzling - perhaps a mistake which they corrected. If it was merely emails or My Case Status, it was probably the fact that it was (is?) under Beta testing and can therefore do ANYTHING wrong. In my case, I requested expedited processing of my I-131 for an Advance Parole so that I could visit U.K. to see my mother who was critically ill. It came through in no time and I have visited England. But My Case Status still shows it as Initial Review - which is irrelevant and I am not worried about it because it's just some more paperwork to take to the Field Office.

Anyway, thanks for the quick reply.

Edited February 2, 2011 by tenyearwait

[tenyearwait 4]

The matter still remains about whether I still need an Affidavit of Support. If I do, can I provide it myself - I was told a while back on the National Benefits helpline that if my income were to be included in the household income, that would make me a self-petitioner and it wouldn't be allowed. Obviously, that was totally incorrect.

But the situation has changed. If the petition is now an I-360, do I still need to meet the Affidavit of Support requirements? I can't find anywhere on the website where it states that a Widower has to file an I-864 to replace the one submitted concurrently in the first place and which is no longer valid as the household income must have changed with the death of the sponsor.

Do I need to provide an Affidavit of Support as a widower or not? Anyone know?

[tenyearwait 4]

I don't know if this is the answer, but has anyone noticed that I-485P which is the Poverty Guidelines sheet issued by USCIS starts at a household size of 2? There IS no figure for a household size of one which is, of course, my household size now that I am a widower.

I tracked down what I believe to be the source of USCIS information on I-485P: U.S. Department of Health and Human Services. These are produced in late January each year and obviously include the household size of one.

The Poverty Guidelines for a household size of one are (linked to the HHS website):

For 2010: $10,830 (125% = $13,537.50)

For 2011: $10,890 (125% = $13,612.50)

If I add my own income as shown on my late wife's I-864 and add her Self-employed rental income (which I am now entitled to include as I now have Employment Authorization), I can easily meet either of these figures. Theoretically, that solves my problem. However, from my own experience, USCIS haven't been known to apply logic or common sense to my application so far. Any idea if I can produce a reference to the HHS Poverty Guidelines as being the source for the DHS I-864P data?

[JimVaPhuong 4,863]

Its been a long time since I've been on here, and I have forgotten a lot, but what I do remember is that once our petition was approved, on the USCIS website the I-130 status went from "Pending", backwards to "Initial Review". I received the NOA2 for the I-130 in the mail a few days later. I don't know why they move it backwards in the system once it's been approved, it must be some carefully guarded USCIS secret...but it had me panicked until I got the approval letter. Hope this helps. x

-CJ

The online status is generally not reliable, but it usually doesn't revert to "Initial Review" after a petition has been approved. If it moves backwards then it's usually to "Post Decision Activity".

The matter still remains about whether I still need an Affidavit of Support. If I do, can I provide it myself - I was told a while back on the National Benefits helpline that if my income were to be included in the household income, that would make me a self-petitioner and it wouldn't be allowed. Obviously, that was totally incorrect.

But the situation has changed. If the petition is now an I-360, do I still need to meet the Affidavit of Support requirements? I can't find anywhere on the website where it states that a Widower has to file an I-864 to replace the one submitted concurrently in the first place and which is no longer valid as the household income must have changed with the death of the sponsor.

Do I need to provide an Affidavit of Support as a widower or not? Anyone know?

Someone with an approved I-360 does not require an affidavit of support, but they are still subject to the public charge determination. They'll take into account stuff like your age, health, education, job skills, etc.

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=720b0a5659083210VgnVCM100000082ca60aRCRD&vgnextchannel=720b0a5659083210VgnVCM100000082ca60aRCRD

When NOT to Submit an Affidavit of Support

...

An individual who has an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, as a Self-Petitioning Widow or Widower

...

[tenyearwait 4]

http://www.uscis.gov...000082ca60aRCRD

When NOT to Submit an Affidavit of Support

...

An individual who has an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, as a Self-Petitioning Widow or Widower

...

Wow! Thanks. I missed that one entirely. Then all I need is to attend interview and hope they are not requiring any more evidence.

THANKS!

[Kathryn41 3,205]

Thread moved from AOS forum to Effects of Major Family Changes on Immigration Benefits forum as a more appropriate location for this discussion.

[tenyearwait 4]

Thread moved from AOS forum to Effects of Major Family Changes on Immigration Benefits forum as a more appropriate location for this discussion.

Thanks - I was wondering where to put it, but my brain hurts as well as my heart right now

[Kathryn41 3,205]

Thanks - I was wondering where to put it, but my brain hurts as well as my heart right now

You're welcome. I am so sorry for your loss and glad that VJ members are able to help you plan on where you need to go at this time. Good luck to you.

Edited February 2, 2011 by Kathryn41

[babyblue 0]

Wow! Thanks. I missed that one entirely. Then all I need is to attend interview and hope they are not requiring any more evidence.

THANKS!

First of all, I am so sorry for your loss!

One of my best friends (USC) married a Filipino (they got married in the Philippines) and were happily together for 3 years. Last year, he suddenly died of a heart attack before he got to submit his petition for a spousal visa. His widow, who I'm very close to, recently self-petitioned for the I-360 as his widow. From my research in trying to help her figure this process out, I found this info: http://www.uscis.gov/files/form/i-864w.pdf -- based on what it says, in your case if you end up having to self petition for an I-360 as a widower, you won't need to submit an Affidavit of Support, but you will need to submit an I-864W (Exemption). I'm not an immigration attorney or expert, so you might want to double-check this with an immigration expert or the Consulate over there.

I wish you the best. May time heal your broken heart and know that your wife is around more than you know or think. The love you shared is real and will never end. Personally, I and my friend's widow (who's like a sister to me) have felt my best friend's presence a lot this past year. We are so grateful for that, and we continue to try and stay open to and aware of his "signs."

God Bless...

Edited June 26, 2011 by babyblue

[tenyearwait 4]

First of all, I am so sorry for your loss!

...

Thanks for the condolences and advice. Sorry for your loss too.

I apologise. I should have come back and posted that I got the Green Card. I should also have posted what needs doing/what I did for others seeking this advice which I'll do now because the process is pretty easy.

Even if the household income drops below the required level (125% of Poverty Level) in my case (specified in the next paragraph) I was not required to satisfy any income requirements although I DID have to complete a form. If this link works, read this to check your own widow(er) status Special Categories - Widow(er) (if link doesn't work, use the search on USCIS website to search for the string "Widow(er)" including that "(er)". Then click on the link titled just "Widow(er)" and find your specific case. My case was:

Widow(er) With Pending or Approved Immigrant Petition

If you were married to a U.S. citizen who had filed Form I-130, Petition for Alien Relative for you before he or she died, you do not need to file anything. The Form I-130 will be automatically converted to a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. If you have children (unmarried and under age 21), they may be included on the Form I-360 regardless of whether your deceased spouse had filed a petition for them.

To qualify, you must not have have been divorced or legally separated from the U.S. citizen at the time of death. Your eligibility to immigrate as a widow(er) ends if you have remarried.

If this case doesn't apply to you, CHECK THAT LINK and the instructions for Form I-485 before following any of this advice in case it is not applicable although reading the following may give some pointers to your case.

Here is the procedure:

Notify USCIS of your loss by providing a Certified Copy of the Death Certificate. (Funeral directors obtain these for you - get a few as they're cheap if ordered in one go. Funeral Directors are also required to formally notify Social Security and other agencies which saves you some bother). Additonally, if you have an outstanding RFE regarding the Affifavit of Support, request USCIS to cancel/withdraw this RFE as that evidence is no longer required because otherwise you won't get an interview. If you don't/can't notify USCIS by one of the following means and you attend the interview, you will be sent away on the basis that your Petitioner isn't present. It is VERY upsetting to be told your dead relative isn't present! Telephone notification would be nice, but without the Death Certificate in their system, they can't do much except note your telephone call and advise you. They may even give you bad advice (in my case, I telephoned requesting advice on self-petitioning and got told they had to escalate my case - when I reached the senior tier officer she told me NO-ONE could self-petition which is pretty idiotic!!! As far as I know, there are only three ways to notify USCIS :

Either:

1. Bring the Death Certicate to your final Interview and hand it to interviewing officer at the very start. (Not recommended unless it's the only way). There are 2 points about this: (a) If your interview is imminent, this is the only way you can notify USCIS as a letter or InfoPass appointment will not be in time. However, ask the funeral director how long the Death Certificates will take to obtain (this varies from county to county). If he can't guarantee that you will have a certificate to take to the interview, telephone USCIS, explain the problem and request that the interview appointment is re-scheduled. (b) Although less important, if you CAN notify by one of the other methods, I advise you do so. If you don't have an interview until weeks or months after you obtain the certificates but haven't notified USCIS earlier by another method, things can go wrong. Also, the interviewing officer will probably look sideways at you and at best consider you stupid and impolite. He may have to proceed with the interview, but he may now be wary about anything you have done. Although he will be polite, he may not go out of his way to make you feel comfortable; or
2. Send a letter to the USCIS office handling your case notifying them (and requesting the RFE cancellation mentioned above if applicable) and enclose the Death Certificate (not recommended unless you can't afford the time and money to use method 3 below; or
3. I recommend this method if it is at all possible! Make an InfoPass appointment and take the Certificate with you. The officers may be ignorant of the procedure because it is rare in your area and take some time to work out what to do but they will find out and advise you because that is their job. You can therefore make sure that it is done before you attend interview. They asked me to go and sit down while they searched for a form (they only had one in the whole office and it took some time to find someone who knew where it was) but they called me to the desk and dealt with me ahead of the person who was next in turn They take the certificate and put it in the computer filing system.

In my case, I received the notice of interview just after my wife died and I had time to get an InfoPass appointment. Although it took a long time, it was worth it as you'll see..

Even if you have notified USCIS by method 2 above and had an acknowledgement or by method 3, take a Death Certificate to the interview!!!

However upsetting it is, don't be put off if the interviewing officer expresses surprise that your Petitioner isn't with you. In my grief I made many mistakes so I had put my certificates in an envelope in the car. The day before the interview, I took them in the house to include in my USCIS pack but forgot. While waiting to be called in, I checked again and had to pass through security twice more to get them from the car - they weren't there. However efficient you were before your loss, don't underestimate the effects of grief - check, check and check again!

My interviewing officer simply asked where my wife was. I explained. He asked me for a Death Certificate. I explained. He told me he couldn't continue the interview. I informed him that I had provided one at InfoPass. He told me that if I had done so, the paper copy would be at the top of the file. He called his supervisor who told him not to proceed. Naturally, I was VERY upset. I was lucky. My interviewing officer was incredibly sympathetic and didn't want to turn away someone who had served his country in the military. Also, I happened to have a photocopy of my InfoPass appointment card (the one you print out from the online InfoPass system). I showed it to him and despite it possibly making him late for his next applicant, he delved in the computer system and finally discovered the filed Death Certificate which my InfoPass officer had input. He apologised and said that they should have printed it out for the paper file. Take one with you to interview!

Disclaimer: I was an existing applicant who had satisfied all RFEs. I didn't have to produce any more evidence except the notification and proof of death.

I hope this helps Don't be afraid to ask for clarification if there is anything you don't understand - if I can't answer, someone else will probably be subscribed to the thread who can! This is an outstanding site with great contributors.

[Off topic, but for what it's worth a note about getting held up on the way to your interview: I allowed 2 extra hours in addition to travel time to be sure I was early. Between the last two exits on the interstate, I found it was a parking lot because of a wreck. the last 4 miles of interstate took me more than two and a half hours. If something like this happens to you, have a cellphone even if you have to borrow one! When I knew I would be late, I called USCIS on their national number (you'll have the interview notice with you so you have the number). Despite passing through a county where cellphoning while driving is banned, I called them and requested an interview later. They won't guarantee it, but at least they notify your local office so that you get on the waiting list. I was lucky and didn't have to wait until closing time to discover they couldn't fit me in. I was slotted in close to the time of my interview but being recently widowered may have been a factor.]

[Darnell 8,478]

Glad to read you got some resolution, after all of this. Congratulations !