Generally, when a petitioner dies, an I-130 petition previously filed by the petitioner is cancelled. However, asking the U.S. government to reinstate the I-130 petition may be possible under certain circumstances.
Reinstatement is Not Necessary for a Widow(er)
A widow or widower of a U.S. citizen may seek permanent residence without asking for reinstatement. In fact, a widow(er) may seek permanent residence even if the deceased U.S. citizen spouse did not previously file an I-130 petition for the foreign spouse. A widow(er) of a U.S. citizen is considered an immediate relative for immigration purposes. Hence, there is no waiting period for the priority date to become current giving the widow(er) immediate access to a green card.
Auto-conversion Benefits
If the deceased U.S. citizen had previously filed an I-130 for the foreign spouse, whether it was approved or is still pending with the U.S. Citizenship and Immigration Services (USCIS), the I-130 automatically converts to a widow(er) petition. If an I-130 is neither approved nor pending, the widow(er) may file an I-360 petition on behalf of themselves.
Derivate Benefits
Another important benefit of a widow(er) petition is that any unmarried children (under 21 years of age) of the widow(er) may immigrate to the U.S. as derivates, unlike for other immediate relative petitions.
Speak with an Immigration Attorney
Sunil C. Patel Immigration Law has extensive experience helping their widow(er) clients seek immigration benefits under the law. We are committed to honest, cost-effective immigration advice and services in every case. Schedule a consultation with attorney Sunil.
