AOS, EAD Husband died

[diadromous mermaid 36]

Hi Everyone,

Please forgive me if I am at the right place to post this or not, I have been trying to find out also how to make a post. I really did not know how to do this because it used to be my husband who dos things and make posts here. Now this is a try if I can make it or not.

We got married on December 2006. We submitted the AOS, EAD and AP first week of March, 2007. I received NOA for the 3 cases and I also already did my Biometrics on the 3rd week of March. My husband died 3 days after my Biometrics. Our marriage only lasted over 2 months. I really don't about my status, what to do, what comes next because it is my husband who does things for me. The lady in the Biometrics office told me I still have to have my Interview, I don't know when, I am going to panic. If EAD and AOS take about a year before being granted, I worry I cannot be able to support myself while waiting, I can't work. I have heard also of the Removal of Conditional Status but I have no idea about all of them. I am just 3 months here and I am very much stranger to a strange place. What will I do next? One friend said find another guy, which is very tough. I don't know. I really don't know. Please help me.

ms grief

My condolences. Please take the time to seek consultation with an immigration attorney to investigate your next steps. In so far as continuing with your Adjustment of Status, the regulations permit widows and widowers of US citizens to file a petition on their own behalf, and pursuant to the marriage to a US citizen only if they have been married to the deceased for at least 2 years prior to his or her death. Do you have contact with and a family support system in place to help you through the next few months?

[Boiler 45,885]

My condolences. Please take the time to seek consultation with an immigration attorney to investigate your next steps. In so far as continuing with your Adjustment of Status, the regulations permit widows and widowers of US citizens to file a petition on their own behalf, and pursuant to the marriage to a US citizen only if they have been married to the deceased for at least 2 years prior to his or her death. Do you have contact with and a family support system in place to help you through the next few months?

Thanks, I had forgotten about the 2 year aspect, not that it applies here.

There was a post I think on this site about a year ago from someone in the same position, can not remember who or from where, English was their first language.

She had no way and seemed to have gone through the whole system. I thought there was also something they had done or were going to do for spouses of serving members of the armed forces? But we are getting off topic.

Edited April 2, 2007 by Boiler

[maelvjim 0]

My condolences. Please take the time to seek consultation with an immigration attorney to investigate your next steps. In so far as continuing with your Adjustment of Status, the regulations permit widows and widowers of US citizens to file a petition on their own behalf, and pursuant to the marriage to a US citizen only if they have been married to the deceased for at least 2 years prior to his or her death. Do you have contact with and a family support system in place to help you through the next few months?

I haven't received interview appointment yet. I am planning to go to immigration office near us personally, but I am also thinking of telling this matter during the interview, what do you think?

I have read the I-360 yes but our marriage did not last 2 years, I don't know if they have exceptions or some considerations regarding my case.

I think I'll be given a little amount that will take care of me for few months for food, and his brother, the trust excutor, told me he'll be going with me when interview comes. Will this help?

[maelvjim 0]

Don't be consufed, maelvjim and mae_jim are jsut one, and i was trying to asnwer DIADROMOUS MERMAID and I don't know it happened that way, I really don't know this, sorry

[Boiler 45,885]

Please take the time to seek consultation with an immigration attorney to investigate your next steps.

You need to do this.

I haven't received interview appointment yet. I am planning to go to immigration office near us personally, but I am also thinking of telling this matter during the interview, what do you think?

My understanding is that your application will be denied, you have no basis for adjustment, see above.

I have read the I-360 yes but our marriage did not last 2 years, I don't know if they have exceptions or some considerations regarding my case.

Nor do I, see above.

I think I'll be given a little amount that will take care of me for few months for food, and his brother, the trust excutor, told me he'll be going with me when interview comes. Will this help?

I can not think of any reason why it would, unless he is an Immigration Lawyer.

[diadromous mermaid 36]

I haven't received interview appointment yet. I am planning to go to immigration office near us personally, but I am also thinking of telling this matter during the interview, what do you think?

I have read the I-360 yes but our marriage did not last 2 years, I don't know if they have exceptions or some considerations regarding my case.

I think I'll be given a little amount that will take care of me for few months for food, and his brother, the trust excutor, told me he'll be going with me when interview comes. Will this help?

Normally, when the petitioner dies, any approved petition is revoked. In some cases, there is an opportunity for an alien to appeal on humanitarian grounds, but only if the petition is revoked. The question ithen becomes, is this an option available to you?

Recently, the Ninth Circuit court reviewed and rejected USCIS' argument that the death of an alien's US husband of less than two years meant that she was stripped of her immediate relative status. The Ninth Circuit court used INA § 201(b. )(2)(A)(i) to support its contention that USCIS was incorrect. Section 201 says, unconditionally, that a

spouse is an immediate relative.

The Ninth Circuit court noted that nothing in this provision voided an alien's spousal status upon the death of the US citizen. Here's where it offers, possibly, some relief:

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 US 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.

The government filed a Motion to Amend or Modify the Decision on July 19, 2006. The court denied this motion on July 27, 2006.

http://www.aila.org/Content/default.aspx?docid=19240

Edited April 2, 2007 by diadromous mermaid

[maelvjim 0]

Normally, when the petitioner dies, any approved petition is revoked. In some cases, there is an opportunity for an alien to appeal on humanitarian grounds, but only if the petition is revoked. The question ithen becomes, is this an option available to you?

Recently, the Ninth Circuit court reviewed and rejected USCIS' argument that the death of an alien's US husband of less than two years meant that she was stripped of her immediate relative status. The Ninth Circuit court used INA § 201(b. )(2)(A)(i) to support its contention that USCIS was incorrect. Section 201 says, unconditionally, that a

spouse is an immediate relative.

The Ninth Circuit court noted that nothing in this provision voided an alien's spousal status upon the death of the US citizen. Here's where it offers, possibly, some relief:

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 US 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.

The government filed a Motion to Amend or Modify the Decision on July 19, 2006. The court denied this motion on July 27, 2006.

http://www.aila.org/Content/default.aspx?docid=19240

diadromous,

Thanks for the info and I hope you will help me with my questions: With my AOS and EAD, who is the petitioner, Me? Or my Late husband?

I hope you can help me find that webpage saying "when petitioner dies..."

I am also trying to open the webpage aila.org but I think I am unable to go there.

thanks

[diadromous mermaid 36]

Normally, when the petitioner dies, any approved petition is revoked. In some cases, there is an opportunity for an alien to appeal on humanitarian grounds, but only if the petition is revoked. The question ithen becomes, is this an option available to you?

Recently, the Ninth Circuit court reviewed and rejected USCIS' argument that the death of an alien's US husband of less than two years meant that she was stripped of her immediate relative status. The Ninth Circuit court used INA § 201(b. )(2)(A)(i) to support its contention that USCIS was incorrect. Section 201 says, unconditionally, that a

spouse is an immediate relative.

The Ninth Circuit court noted that nothing in this provision voided an alien's spousal status upon the death of the US citizen. Here's where it offers, possibly, some relief:

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 US 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.

The government filed a Motion to Amend or Modify the Decision on July 19, 2006. The court denied this motion on July 27, 2006.

http://www.aila.org/Content/default.aspx?docid=19240

diadromous,

Thanks for the info and I hope you will help me with my questions: With my AOS and EAD, who is the petitioner, Me? Or my Late husband?

I hope you can help me find that webpage saying "when petitioner dies..."

I am also trying to open the webpage aila.org but I think I am unable to go there.

thanks

The petitioner in a marriage based case is, or rather, was your former husband. The applicant to adjust status is the alien, but it is only permissible for an alien to adjust status, if the alien is the beneficiary of an approved petition (made by the USC, or in this case, your late husband).

[Nancy2015 2]

I am so sorry to hear about the death of your husband, maelvjim

I don't know if USCIS care about the case law, unless the issue is taken to court. Normally, if the petitioner dies before the I-485 is adjudicated, the alien has no basis for adjustment any more. Had the petitioner died after the conditional green card was issued, there would have been an option of filing I-751 waiver, which, unlike I-360 for a widower, doesn't have a 2-year marriage requirement.

In this case, there is no basis for adjustment any more. Petitioner died before the I-485 approval.

[meauxna 15]

In this case, there is no basis for adjustment any more. Petitioner died before the I-485 approval.

Jewel, you might enjoy a read through the summary of the case DM cited above. I followed it because it happened where I live, but the court argued that there may be a basis, even if the sponsor spouse dies before I-485 approval (and less than 2 years of marriage).

[Nancy2015 2]

In this case, there is no basis for adjustment any more. Petitioner died before the I-485 approval.

Jewel, you might enjoy a read through the summary of the case DM cited above. I followed it because it happened where I live, but the court argued that there may be a basis, even if the sponsor spouse dies before I-485 approval (and less than 2 years of marriage).

Yep, I've read that, but I wonder if USCIS will really use the outcome of this case as their common practice from now on. I sure hope so, because I do not understand why being married for over 2 years at the time of your spouse's death should make any difference in what a widow(er) is eligible for.

Edited April 3, 2007 by Jewel12

[maelvjim 0]

Thanks for all your messages, advices and opinions, I really appreciate them. It is really a good feeling to be around with good helpful people. Won't still mind if I ask other questions?

1) Meauxna and jewel, as far as I understand, you were talking about the same case as mine that happened before (DM case), can you pls share me the webpage/url so I have something to read?

2) Can anyone pls share me links that say if petitioner dies, the petition is automatically revoked, pls?? Or any that relates/explains my situation.

3) I am planning to inform/call the uscis to inform them about my situation, is that a right thing to do? If so, when do you think is the best time to do so, A) wait until i receive my interview appointment letter? B) Or after his funeral in about a month or so? C) Or right this week?

[diadromous mermaid 36]

Thanks for all your messages, advices and opinions, I really appreciate them. It is really a good feeling to be around with good helpful people. Won't still mind if I ask other questions?

1) Meauxna and jewel, as far as I understand, you were talking about the same case as mine that happened before (DM case), can you pls share me the webpage/url so I have something to read?

2) Can anyone pls share me links that say if petitioner dies, the petition is automatically revoked, pls?? Or any that relates/explains my situation.

3) I am planning to inform/call the uscis to inform them about my situation, is that a right thing to do? If so, when do you think is the best time to do so, A) wait until i receive my interview appointment letter? B) Or after his funeral in about a month or so? C) Or right this week?

Please, there's an important thing to remember in cases that involve complications to immigration process: "Consult a competent immigration attorney, first". Even before calling USCIS!

As for the regulations.....

8 CFR § 205.1(a)(3)(i) Automatic Revocation of Immediate Relative and Family Sponsored Petition

Approval of a visa petition of a relative of a United States citizen or a permanent alien resident is automatically revoked under several circumstances, including death. The petition is revoked, inter alia, based

(B) Upon the death of the petitioner or beneficiary.

© Upon the death of the petitioner unless the Attorney General in her discretion determines that for humanitarian reasons revocation would be inappropriate.

The regulation, 8 CFR § 205.1 (a)(3)(i)©, specifically states that discretion based on humanitarian grounds can only be exercised upon the automatic revocation of an approved petition.

To read more on the revocation, check out this link

http://www.cyrusmehta.com/News.aspx?SubIdx...19&Year=All

[Boiler 45,885]

So the OP is out of status from the date of death and is accumulating time towards a ban?

So the crux point would come 180 days after the date of death where a 3 year ban kicks in?

I mention this as marriage to another USC was mentioned in the first post.

[diadromous mermaid 36]

So the OP is out of status from the date of death and is accumulating time towards a ban?

So the crux point would come 180 days after the date of death where a 3 year ban kicks in?

I mention this as marriage to another USC was mentioned in the first post.

I would imagine, and it is pure speculation mind you, that the OP would not be out of status until 'declared' out of status, either by a denied adjustment petition, or a revoked petition, and if appealed once an appeal was unsuccessful.