Atty. David Zuckerman
Q: I RECENTLY married a U.S. citizen after coming here on a K-1 visa, and we filed an application for my green card, but my husband unex
A: The general rule for immigration petitions is that once a petitioner passes away, the petition is no longer valid. There are a few exceptions to this rule, but they are either limited in applicability or are approved at the discretion of the U.S. Citizenship and Immigration Service. However, a recent court decision has made it easier for newly-widowed spouses of U.S. citizens to obtain their green cards.
Before I discuss that case, I’ll review the options available before the case was decided. This will provide some background and show why this case may make a significant difference for those who recently lost a petitioning spouse.
Immigration regulations state that an approved petition is automatically revoked if the petitioner dies, unless USCIS, in its discretion, determines that the revocation would be inappropriate for “humanitarian reasons.” USCIS is not required to reinstate the petition, but it has the option to do so if you show that, for humanitarian purposes, the petition should not be revoked. Obviously, this is not a clear standard, so reinstating a petition this way is not easy. In addition, the regulation states that the initial petition must be approved before this option is available. If a spouse passes away while a petition is still pending and not yet approved, a humanitarian request to reinstate it cannot be made.
Another hurdle you must clear in these situations is having a substitute sponsor for signing the Affidavit of Support in lieu of the deceased petitioner. When a relative is petitioned, the petitioner must sign a form stating that they will financially support the foreign relative when they come to the United States. The immigration law specifies which relatives qualify to take the place of the deceased petitioner.
There is a special option available for widows and widowers of U.S. citizens. They are allowed to file for green cards by themselves, but only if they had been married to the U.S. citizen spouse for at least two years before the U.S. citizen passed away. In practice, this option is not used very often, because many spouse petitions are filed soon after the marriage. Most people do not want to wait two years before filing for a green card. If the marriage did not last for a full two years before the U.S. citizen spouse passed away, then a self-petition under this exception cannot be filed.
These were the only options for the widow or widower of a U.S. citizen spouse until recently. In April, the Ninth Circuit Court of Appeals ruled that a widow was still considered an “immediate relative” under the immigration law even though her U.S. citizen husband had passed away, and her pending green card application should be reinstated.
The widow in this case had her petition and green card application filed before her husband’s death, but neither had been approved. The government argued that she no longer qualified as an immediate relative once her husband died, but the court rejected this argument. Instead, the court found that there was nothing in the immigration law that would void her spouse status upon the death of her husband. The court also noted that if the green card was issued before her husband died, it would not have been taken away from the wife after he died. In fact, the court stated, it would be unfair for surviving spouses to lose their chance at a green card simply because USCIS couldn’t process their applications quickly enough.
This case is now the law in the Ninth Circuit, which includes California and other western states. You should consult with an experienced immigration attorney if your spouse passed away before your green card was issued.
