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ResourcesVisa & Immigration LawNationality LawWhat if My US Citizen Spouse Dies During the Marriage Visa Process?

What if My US Citizen Spouse Dies During the Marriage Visa Process?

Transcript of the above video:

As the title of this video suggests, we are going to be discussing “What happens in the tragic event of losing one’s American citizen spouse while undergoing the marriage visa process; or processing of a marriage visa to the United States?”

To quote directly from USCIS.gov, “if you are married to a US Citizen who had filed for
an I-360 petition for an alien relative for you before he or she died, you do not need to file anything. The form I-130 will be automatically converted to a form I-360 petition for Amerasian widower or special immigrant. If you have children unmarried and under age 21, they may be included in the form I-360 regardless of whether your deceased spouse had filed a petition for them. To qualify, you must not have been divorced or legally separated from the US citizen at the time of death. Your eligibility to immigrate as a widow or widower ends if you have remarried.”  

Unfortunately, the law did not catch up to kind of a little hitch in the law that  actually resulted in a circuit fight, in a circuit conflict in the Federal Court system in the United States regarding widows and widowers of US citizens. In the specific context of the adjustment of status, there was actually a case that was brought up in my native Kansas that brought its way all the way up to the Circuit Court level. There was also one out of California where they were two totally different interpretations of the law. Basically one Circuit Court stating, “yes widows and widowers would just process through as if the citizen was basically still alive”, and the other court said “no, it ends. It sort of extinguishes at the moment of that citizen’s death.” Congress came in, they sort of reoriented all this; we now have the I-360. So as of the time of this filming at least, one can go ahead and file for immigration benefits. Even if one hasn’t filed yet, one can actually file, notwithstanding the fact that an American citizen spouse passed away; there is another video on this channel specific to that topic, but the thing to take note in this video is if one has a pending I-130 that is going through the system, and the American spouse dies, that is not a deal killer, that does not end the process. As noted by USCIS itself, it simply converts the matter into an I-360 and converts from there.  But one thing to take note of as noted by USCIS,   remarriage will cause an extinguishing of the matter so one should never make decisions with respect to immigration benefits, one should never make decisions with respect to their life and their life style choices simply for the purposes of getting, maintaining or renewing Immigration benefits but it is something to keep a note of that that is a factor that will extinguish this process if one does get remarried.

So again, the thing to take away from this video, if one’s American citizen spouse passes away, as tragic as that is, while the process is ongoing, one’s benefits do not simply extinguish by dint of that fact and in fact the matter will be converted into an I-360 and processed further.