Death of husband

[Teaser 0]

Hi to all of you,

I am German and new to this forum. I hope to find some help here.

My husband died in March 2006, after only 8 months of marriage. We would have had the "Interview" for my Greencard/Perm. Res. in April. I contacted my (first) Immigration lawyer immediately, and she told me, I'd have to go back to Germany. My "every day lawyer" introduced me to a second Immigrations lawyer, and she helped me to get the "Humanitarian Parole", which expires in April 2007.

This second lawyer heard of a case similar to mine in California, where the widow got her GC, eventhough their marriage was much shorter than 2 years, and the condition was removed. This was the basis for my lawyer for the "motion to re-open" my case. It was denied, as the time of filing and the death of my husband was too long. As far as I know, this was the first case like this, and my lawyer got active immediately. How can it be too late, if this was the first case? Or have there been similar cases before?

The marriage with my husband was done in good faith. Now I'm living here for almost 2 years, have a house, a household, friends, and I consider this country as my home. I'd really like to stay here, as I have no ties to Germany anymore.

Is there any hope or even help?

Thanks, Teaser

[kitkat1 5]

Sorry to hear your sad story but it's good you got rid of the first lawyer.

I'm confused because the 751 instructions provides information in the event of the death of a spouse: If you are filing to waive the joint filing requirement due to the death of your spouse, also submit a copy of the death certificate with your petition. I'm not clear on why you would have needed Humanitarian Parole or anything of the sort. What exactly was denied and what was the reason? Did you file too late?

[ChristinaM 0]

Kitkat, she's not at the removing conditions stage. She does not yet have a green card.

Condolences for your situation, Teaser.

[kitkat1 5]

Kitkat, she's not at the removing conditions stage. She does not yet have a green card.

Then I'm totally confused. The subject says "Death of husband, Removal of conditions". Not knowing what kind of visa she had, if she was married for 8 months wouldn't she have already gotten her conditional green card and now needs to remove the conditions?

[CWR 0]

Then I'm totally confused. The subject says "Death of husband, Removal of conditions". Not knowing what kind of visa she had, if she was married for 8 months wouldn't she have already gotten her conditional green card and now needs to remove the conditions?

No, she apparently does NOT have the conditional greencard (she wrote that she was supposed to have the greencard interview in April, which then was the month after her husband passed away). It also took me 9 months to get my conditional green card, and there are others out there for whom it took even longer.

So, no, it's perfectly normal that she didn't get her conditional GC before her husband's passing.

Unfortunately, I have no advice to give in this case, since it's so complicated (it would of course have been a lot easier if the conditional GC had been given already).

I met Teaser in another Forum and referred her to you all, since I hoped that there might be someone out here who would know a solution for her situation.

I remember waiting all those months for my conditional GC, and the thought of what would happen to me if my husband passed away before AOS was approved did pass through my mind as well. Luckily, the worst-case scenario did not happen, but that's why I can sympathize with Teaser really well

Well, as I said, maybe someone here knows some kind of a solution.....

@Teaser: All the best and good luck,

CW

PS @ Teaser: Kitkat is right, though, the title of the thread is misleading. Maybe you should consider changing it to something like "Death of husband before Greencard approval" or so

Edited January 4, 2007 by CWR

[Teaser 0]

Then I'm totally confused. The subject says "Death of husband, Removal of conditions". Not knowing what kind of visa she had, if she was married for 8 months wouldn't she have already gotten her conditional green card and now needs to remove the conditions?

No, she apparently does NOT have the conditional greencard (she wrote that she was supposed to have the greencard interview in April, which then was the month after her husband passed away). It also took me 9 months to get my conditional green card, and there are others out there for whom it took even longer.

So, no, it's perfectly normal that she didn't get her conditional GC before her husband's passing.

Unfortunately, I have no advice to give in this case, since it's so complicated (it would of course have been a lot easier if the conditional GC had been given already).

I met Teaser in another Forum and referred her to you all, since I hoped that there might be someone out here who would know a solution for her situation.

I remember waiting all those months for my conditional GC, and the thought of what would happen to me if my husband passed away before AOS was approved did pass through my mind as well. Luckily, the worst-case scenario did not happen, but that's why I can sympathize with Teaser really well

Well, as I said, maybe someone here knows some kind of a solution.....

@Teaser: All the best and good luck,

CW

PS @ Teaser: Kitkat is right, though, the title of the thread is misleading. Maybe you should consider changing it to something like "Death of husband before Greencard approval" or so

Thanks to all of you.

@Kitkat: As my lawyers told me, Humanitarian Parole was the only way to keep me here. The Court denied the "motion to re-open", because it was too long after my husbands death. Maybe I would have had a chance, had she filed immediately after this death, but at this time the only comparable case in California was not yet official.

Anyway, thanks, Teaser

[Lovetoteach 53]

What about VAWA and the I 360 ? I'm sure there is something in there about widowers

[Lovetoteach 53]

I'm sorry i've just checked it out again and you needed to have been married for two years. My condolences to you .

[diadromous mermaid 36]

Then I'm totally confused. The subject says "Death of husband, Removal of conditions". Not knowing what kind of visa she had, if she was married for 8 months wouldn't she have already gotten her conditional green card and now needs to remove the conditions?

No, she apparently does NOT have the conditional greencard (she wrote that she was supposed to have the greencard interview in April, which then was the month after her husband passed away). It also took me 9 months to get my conditional green card, and there are others out there for whom it took even longer.

So, no, it's perfectly normal that she didn't get her conditional GC before her husband's passing.

Unfortunately, I have no advice to give in this case, since it's so complicated (it would of course have been a lot easier if the conditional GC had been given already).

I met Teaser in another Forum and referred her to you all, since I hoped that there might be someone out here who would know a solution for her situation.

I remember waiting all those months for my conditional GC, and the thought of what would happen to me if my husband passed away before AOS was approved did pass through my mind as well. Luckily, the worst-case scenario did not happen, but that's why I can sympathize with Teaser really well

Well, as I said, maybe someone here knows some kind of a solution.....

@Teaser: All the best and good luck,

CW

PS @ Teaser: Kitkat is right, though, the title of the thread is misleading. Maybe you should consider changing it to something like "Death of husband before Greencard approval" or so

Thanks to all of you.

@Kitkat: As my lawyers told me, Humanitarian Parole was the only way to keep me here. The Court denied the "motion to re-open", because it was too long after my husbands death. Maybe I would have had a chance, had she filed immediately after this death, but at this time the only comparable case in California was not yet official.

Anyway, thanks, Teaser

INA § 205 authorises the Attorney General to revoke the approval of any family petition under the immediate relative or preference categories for good or sufficient cause. Under the Code of Federal regulations, 8 C.F.R. § 204.1(a)(3)(i), approval of a visa petition on behalf of a relative of the US citizen or a permanent resident is automatically revoked under several circumstances, including death. In the case of death, the petition is revoked upon:

. the death of the petitioner or beneficiary, or

. the death of the petitioner unless the Attorney General in his discretion

Upon revocation, some cases in Federal Court that have successfully challenged the failure of the Service to revalidate on humanitarian grounds, are typically based upon delays in processing a petition, that would have been approved, were it not for some mistake or dilatory element on the part of USCIS. See, Pierno v. INS, 397 F.2d 949 (2nd Cir. 1968).

A petition for alien relative (Form I-130) must be approved prior to the sponsor’s death and before the humanitarian exception may be invoked. If the petitioner dies prior to the interview, the humanitarian exception may not apply. However, if he or she was the spouse of a US citizen for at least two years before the death, INA § 201(B)(2)(A)(i) provides that an alien who was the spouse of a US citizen for at least two years before the citizen died shall remain eligible for immigrant status as an immediate relative.

There is one 9th Circuit Court of Appeals ruling that served to challenge the USCIS's position that a survivor could only be afforded immigrant status as an immediate relative if the marriage had been of 2 years in duration prior to the death of the USC petitioner.

Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006)

The court also rejected the government’s argument that the death of the wife’s U.S. citizen husband less than two years after their marriage meant that she was stripped of her immediate relative status. The court relied on the first sentence of INA § 201(B)(2)(A)(i), which says unconditionally that a spouse is an immediate relative. The court noted that nothing in this provision voided her spousal status upon the death of her husband. The court further found that the second sentence of INA § 201(B)(2)(A)(i), granting surviving spouses the right to self petition if the U.S. citizen spouse dies after two years of marriage, has no effect on the status of a surviving spouse married less than two years and who properly filed an adjustment of status application prior to the U.S. citizen’s death.

[lisa71 0]

I am very sorry to read of teasers loss. I sincerely hope that you can sort your situation out. This thread is rather timely for me. My husband of almost 14 months came very close to dying late November and early December last year. Thankfully, he pulled through and seems to be recovering from the condition he was diagnosed with. I didn't think about it at the time, but after reading this thread I wonder what would have happened to me and my children. We have our temporary permanent resident cards. Would we have had to leave the US and return to Australia had he passed away?

[Boiler 45,932]

Once you have a GC you are OK.

I seem to remember a case involving the widow of a US Soldier who was killed prior to adjustment, I thought they gave some lee way after that, may have been in limited circumstances.

[Teaser 0]

Then I'm totally confused. The subject says "Death of husband, Removal of conditions". Not knowing what kind of visa she had, if she was married for 8 months wouldn't she have already gotten her conditional green card and now needs to remove the conditions?

No, she apparently does NOT have the conditional greencard (she wrote that she was supposed to have the greencard interview in April, which then was the month after her husband passed away). It also took me 9 months to get my conditional green card, and there are others out there for whom it took even longer.

So, no, it's perfectly normal that she didn't get her conditional GC before her husband's passing.

Unfortunately, I have no advice to give in this case, since it's so complicated (it would of course have been a lot easier if the conditional GC had been given already).

I met Teaser in another Forum and referred her to you all, since I hoped that there might be someone out here who would know a solution for her situation.

I remember waiting all those months for my conditional GC, and the thought of what would happen to me if my husband passed away before AOS was approved did pass through my mind as well. Luckily, the worst-case scenario did not happen, but that's why I can sympathize with Teaser really well

Well, as I said, maybe someone here knows some kind of a solution.....

@Teaser: All the best and good luck,

CW

PS @ Teaser: Kitkat is right, though, the title of the thread is misleading. Maybe you should consider changing it to something like "Death of husband before Greencard approval" or so

Thanks to all of you.

@Kitkat: As my lawyers told me, Humanitarian Parole was the only way to keep me here. The Court denied the "motion to re-open", because it was too long after my husbands death. Maybe I would have had a chance, had she filed immediately after this death, but at this time the only comparable case in California was not yet official.

Anyway, thanks, Teaser

INA § 205 authorises the Attorney General to revoke the approval of any family petition under the immediate relative or preference categories for good or sufficient cause. Under the Code of Federal regulations, 8 C.F.R. § 204.1(a)(3)(i), approval of a visa petition on behalf of a relative of the US citizen or a permanent resident is automatically revoked under several circumstances, including death. In the case of death, the petition is revoked upon:

. the death of the petitioner or beneficiary, or

. the death of the petitioner unless the Attorney General in his discretion

Upon revocation, some cases in Federal Court that have successfully challenged the failure of the Service to revalidate on humanitarian grounds, are typically based upon delays in processing a petition, that would have been approved, were it not for some mistake or dilatory element on the part of USCIS. See, Pierno v. INS, 397 F.2d 949 (2nd Cir. 1968).

A petition for alien relative (Form I-130) must be approved prior to the sponsor’s death and before the humanitarian exception may be invoked. If the petitioner dies prior to the interview, the humanitarian exception may not apply. However, if he or she was the spouse of a US citizen for at least two years before the death, INA § 201(B)(2)(A)(i) provides that an alien who was the spouse of a US citizen for at least two years before the citizen died shall remain eligible for immigrant status as an immediate relative.

There is one 9th Circuit Court of Appeals ruling that served to challenge the USCIS's position that a survivor could only be afforded immigrant status as an immediate relative if the marriage had been of 2 years in duration prior to the death of the USC petitioner.

Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006)

The court also rejected the government’s argument that the death of the wife’s U.S. citizen husband less than two years after their marriage meant that she was stripped of her immediate relative status. The court relied on the first sentence of INA § 201(B)(2)(A)(i), which says unconditionally that a spouse is an immediate relative. The court noted that nothing in this provision voided her spousal status upon the death of her husband. The court further found that the second sentence of INA § 201(B)(2)(A)(i), granting surviving spouses the right to self petition if the U.S. citizen spouse dies after two years of marriage, has no effect on the status of a surviving spouse married less than two years and who properly filed an adjustment of status application prior to the U.S. citizen’s death.

Thanks a lot for this information. I'm not familiar with the legal English and it's all very confusing, but I'll talk to my private lawyer, who also is a friend of mine. Maybe there is a chance ... Thanks again, Teaser

[Ladylethal 12]

It's a tough situation as in most cases I'd assume that given the short time of marriage and time in the US the foreigner would want to return home to their own family, but you're stating that you don't have ties to germany so I hope you can sort this out.

[Rob and Melinda 0]

So sorry to hear of your loss, after all you have been through. Praying that you can stay here in the US in your new home.

Rob and Melinda