Immigrant Petitions
I-130
Surving Spouses of Deceased U.S. citizens and Qualifying children:
For many years, a Form I-130 could not be approved if the petitioner died while the I-130 was pending unless the Petitioner/Beneficiary had been married at least 2 years. This changed on October 28, 2009 when the President signed the FY2010 DHS Appropriations Act inot law. This change in law is applicable to any visa petition or adjustment application pending on or after the date of enactment. A form I-130 will be deemed "pending" if 1) USCIS has not yet adjudicated a Form I-130, 2) USCIS granted a motion to reopen or reconisder so that the Form I-130 is again pending, 3) USCIS denied the Form I-130 but has not yet ruled on a motiona to reopen or reconsider, 4) USCIS denied the Form I-130 but the alien filed an appeal to the BIA or 5) The I-130 is the subject of civil litigation.
Any I-130 that is "pending" will be deemed to be and adjudicated as a widow(er)'s Form I-360. This is because 8 C.F.R. 204.2(i) provides that a citizen's spousal Form I-130 is automatically converted to a widow(er)'s Form I-360 if, on the date of the citizen's death, the beneficiary qualifies as a widow(er).
The change in law also makes the amendment applicable to any form I-485 that was pending on the date of the enactment.
Since no Form I-130 is required for a K-1 nonimmigratn to seek adjustment after marrying the K petitioner within the period specified by statute, a K-1 nonimmigrant visal will also be deemed the beneficiary of a Form I-360 if the K-1 nonimmigratn now qualifies as a widow(er). The K-1 nonimmigratn still may not adjust, however, on any basis other than the K-1 nonimmigratn's having married the citizen petitioner who filed the Form I-129F.
An alien widow(er) of a citizen who died before October 28, 2009, but who did not have a form I-130 pending on that date, may now filed a Form I-360, provided that he/she does so before October 28, 2011 and has not remarried.
For any case in which a citizen dies on or after October 28, 2009, the alien widow(er) must file the Form I-360 within 2 years of the citizen's death.
The child of a widow(er) whose Form I-360 is approved may be included in the widow(er)'s petition. Whether an individual qualifes as the child of a widow(er) depends on the invidicual's age when the visa petition was filed. For those cases that were pending on October 28, 2009, the Form I-360 filing date is deemed to be the date on which the deceased citizen filed the prior Form I-130. If a widow(er) has an unmarried son or daughter who was under 21 when the deceased citizen filed the Form I-130, that individual will still be deemed to be under 21 for the purposes of the widow(er)'s now-converted From I-360.
An Affidavit of Support is not required in the case of the widow(er) of a citizen, and his or her accompanying children.