What Happens for the Pending Form I-130 which Was Filed by My Husband before?

Question:

My U.S. citizen husband died recently, what happens for the pending Form I-130 which was filed by my husband before?

Answer:

If a widow remained in the U.S. after the U.S. citizen husband and petitioner died, while awaiting the result of Form I-130 petition, widow will not be deemed as unlawful presence with the U.S. immigration policy.

This policy applies only to widow or widower who had a Form I-130 petition pending at the USCIS. If the U.S. citizen spouse never filed a Form I-130 for the alien spouse, the widow or widower may file a Form I-360 within the applicable filing period.

In the past, an immigration petition could not be approved if the petitioner died while the petition remained pending. U.S. Congress had addressed this scenario with a new statutory provision, INA 204. This provision gave foreign nationals the ability to seek an immigration benefit through a deceased qualifying relative in certain circumstances. An USCIS officer may approve an immigration petition if:

The applicant resided in the United States when the qualifying relative died;

The applicant continues to reside in the United States on the date of the decision on the pending application; and

The applicant is at least one of the following:

1) A beneficiary of a pending or approved immediate relative immigrant visa petition;

2) A beneficiary of a pending or approved family-based immigrant visa petition, including both the principal beneficiary and any derivative beneficiaries;

3) Any derivative beneficiary of a pending or approved employment-based immigrant visa petition;

4) The beneficiary of a pending or approved Refugee/Asylee Relative Petition (Form I-730);

5) A foreign national admitted as a derivative T or U nonimmigrant; or

6) A derivative asylee.