What Happens if an I-130 is Filed Based on Marriage and one of the Spouses Becomes Deceased?

by Phoenix immigration lawyer Ryan Reppucci

It’s Saturday, and like most of you I am moving a little slow today. I figured I would write a

blog to get the blood moving as I delve into my weekend. I am going to switch it up today as I keep

getting questions regarding what happens if an I-130 is filed based on marriage and one of the

spouses becomes deceased.

On October 28, 2009, the President signed the FY2010 DHS Appropriations Act into law,

allowing eligible widows or widowers of U.S. citizens to qualify for permanent resident status

regardless of how long the couple was married. Which is a very good departure from when

the petition would die with the petitioner if the couple had not been married for more than two


These provisions of the FY2010 DHS Appropriations Act relate only to the impact of the

citizen’s death on a widow(er)’s eligibility for classification as an immediate relative. All other

requirements for approval of a visa petition remain in force. To qualify the and keep the I-130

valid, the widow(er) must establish:

• He or she was the citizen’s legal spouse.

• The marriage was bona fide and not an arrangement solely to confer immigration benefits

to the beneficiary.

• He or she has not remarried.

• He or she is admissible as an immigrant.

• In an adjustment of status case, that he or she meets all other adjustment eligibility

requirements and merits a favorable exercise of discretion.

As of October 28, 2009, any pending Form I-130 that was filed on a widow(er)’s behalf

prior to the citizen spouse’s death will automatically convert to a widow(er)’s Form I-360,

Petition for Amerasian, Widow(er), or Special Immigrant, so long as, on the date of the citizen

spouse’s death, they qualified as an immediate relative under the INA and the FY2010 DHS

Appropriations Act.

If the Form I-130 was approved before U.S. citizen petitioner’s death, it will automatically

convert to an approved I-360. Unmarried minor children of the widow(er) will also be eligible to

seek an immigrant visa or adjustment of status based on the approved Form I-360.

Pending Form I-485, Application to Register Permanent Residence or Adjust Status

Additionally, if USCIS has jurisdiction to act on a Form I-485, Application to Register

Permanent Residence or Adjust Status, that is the subject of litigation on this issue in any Federal

court, USCIS will notify applicants in writing that their Form I-485 has been reopened. If the

widow(er) entered the United States as a K-1 nonimmigrant and filed an I-485 after marrying

the deceased U.S. citizen, he or she will be deemed the beneficiary of a Form I-360 Widow(er)


Widow(er)s of citizens who died before October 28, 2009, but who did not have a Form I-

130 pending on October 28, 2009, have until October 28, 2011, to file a Form I-360, Petition

for Amerasian, Widow(er), or Special Immigrant, for themselves and their unmarried minor

children. A widow(er) whose citizen spouse died on or after October 28, 2009, will have two

years from the date of the citizen spouse’s death to file their Form I-360.

As always, if you have questions regarding this article or any other information related to your immigration matter, please contact the experienced Phoenix immigration lawyers of Ariano & Reppucci.