Does Death of Spouse Void Petition?
Reuben S. Seguritan, Feb 16, 2008
Does an immigrant visa petition (Form I-130) filed by a
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
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
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
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
This was also the conclusion made by two federal district courts in
Relying on the opinion of the federal court of appeals in Freeman v. Gonzales, the
In the
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.
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Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at