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.
Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com