Q: My US Citizen husband had filed an I-130 Petition for me. However, he just passed away. What happens now to the Petition? Can I still obtain my permanent residence? I had also filed my I-485 Application to Adjust Status to Permanent Resident.
A: A widow or widower of a US Citizen is allowed to retain the classification as an immediate relative of the deceased US Citizen spouse and continue to be eligible to immigrate on the filed I-130 Petition for Alien Relative. You must be able to show you have a good faith marriage to your spouse, and preferably, remain unmarried for the duration of the case.
Q: What is the procedure to apply for immigration benefit if my US Citizen spouse dies and she has not filed the I-130 Petition for me? I married my wife two months ago and she just discovered she has terminal cancer and not long to live. I am in the process of trying to decide my options once she passes away – whether to remain in the United States and pursue permanent residence or just return to my home country and re-start my life over there.
A: If you decide to initiate the permanent residence process after your US Citizen spouse passes away, you will have to file Form I-360 self-petition as an immediate relative. The self-petition must be filed within two years of your spouse’s death. You should remain as widower (be unmarried) during the entire process including the adjustment of status process. You must also be able to demonstrate that you have a legal and bona fide marriage to your deceased spouse. You may file the Form I-485 Application for Permanent Residence concurrently with the I-360 self-petition. There is no Affidavit of Support requirement. As such you will need to file with the I-485 Application for Permanent Residence the Form I-864A Request for Exemption for Intending Immigrant.
Q: What is the Filing Fee for Form I-130 and Form I-360?
A: The Filing Fee for Form I-130 is $535.00 and there is no Filing Fee for Form I-360.
Q: My US Citizen sibling filed an I-130 Petition for Alien Relative for me several years ago and the petition has been approved. I have been waiting for the immigrant visa to become available but the priority date is still not current. My sibling passed away suddenly of a heart attack and I am wondering if I am still able to obtain permanent residence through his petition? I currently have H-1B status and reside in the US. If it is possible, what do I need to do?
A: Under Section 204(l) of the Immigration and Nationality Act, you may be able to seek relief if at the time of your father’s death, you can demonstrate that you reside in the United States. If you decide you wish to receive your immigrant visa through consular processing (i.e at the US Consulate abroad), I advise that you continue to maintain your US residence when you travel abroad to receive the visa. Section 204(l) of the INA is a very useful provision which offers protection to the following types of beneficiaries: the principal or derivative beneficiary of a pending or approved I-130 petition, when the Petitioner dies; the derivative beneficiary of a pending or approved I-130 Petition, when the principal beneficiary dies; the derivative beneficiary of a pending or approved I-140 employment based petition, when the principal beneficiary dies; beneficiary of a pending or approved I-730 refugee / asylee relative petition when the petitioner asylee dies; the derivative of a T or U nonimmigrant visa holder who is admitted as a derivative when the principal T or U visa holder dies and the derivative asylee, when the principal asylee dies. To apply for this benefit, there is no specific form to use in conjunction with the I-485. You will need to separately request for INA Section 204(l) relief by submitting a letter containing the details of the deceased petitioner and providing proof of the Petitioner’s Death Certificate and proof of your residence in the US at the time of death. For the Affidavit of Support, you will need to provide Form I-864 Affidavit of Support by substitute sponsor or and I-864W Intending Immigrant’s Affidavit of Support Exemption if you are exempt from the Affidavit of Support requirements, for example if you already have 40 Quarters of employment income etc.
Q: My US Citizen mother filed an I-130 Petition for Alien Relative for me and it included my spouse and 10 year-old child. The Petition was approved last year and my mother died several months after the petition was approved. We do not live in the United States. Can we still immigrate on my mother’s petition?
A: If the Petitioner dies and the Beneficiary has an approved petition but does not reside in the United States at the time of the Petitioner’s death, then the only way to immigrate would be through ‘humanitarian reinstatement’ of the petition. The limitation of humanitarian reinstatement are as follows : the petition must already be approved before the Petitioner died and it can only provide relief for the principal beneficiary, and not the derivative beneficiaries, if any. In your case, if your request for humanitarian reinstatement is granted, you could end up immigrating under the petition but your spouse and child may not. This is a discretionary form of relief and will depend on factors such as processing delays, lack of ties to your home country, your health and any other factors that could be favorable to a reinstatement. You must write a letter to USCIS explaining why the petition should be reinstated and provide evidence for this.
Any advice provided in this article is general in nature and not intended to constitute legal advice for any specific case. Please consult with an immigration lawyer about the specific circumstances of your case.
Sharlene Sharmila Richards is a licensed Immigration Lawyer practicing in Houston, Texas. She is a member of the American Immigration Lawyers Association. She was admitted to the New York State Bar in 2000 and is a member of the 5th Circuit Court of Appeals and a member of the US Supreme Court. If you require advice or assistance, you may contact her at telephone number 713-623-8088 or by email at email@example.com to schedule a free consultation to discuss your case.