What Happens If Spouse Dies During Immigration Process

4

Immigrating to a new country with your spouse is often a dream filled with hope for a better future. However, the unthinkable can happen, and the death of a spouse during the immigration process can turn this journey into a complex and emotionally challenging situation. In this article, we’ll explore in detail what occurs when such a tragic event takes place and the steps that may follow.

Before delving into what happens when a spouse dies, it’s essential to understand the different types of spousal immigration. In many countries, including the United States, there are two main paths: family – based immigration for permanent residency (green card) and fiancé (K – 1) visas for those planning to marry in the new country.

Family – Based Green Card: This is for spouses of citizens or permanent residents. The process typically involves the U.S. citizen or permanent resident spouse (the petitioner) filing a petition on behalf of their non – U.S. citizen spouse (the beneficiary). The petition, known as Form I – 130, starts the process. After the petition is approved, the beneficiary goes through a series of steps, which may include a medical examination, background check, and an interview at a U.S. embassy or consulate.

Fiancé (K – 1) Visa: This visa is for couples who plan to marry within 90 days of the fiancé’s arrival in the United States. The U.S. citizen files a petition (Form I – 129F) for their foreign – national fiancé. Once approved, the fiancé can enter the U.S. and must marry the petitioner within the 90 – day period. After marriage, they can then apply for adjustment of status to become a permanent resident.

In both family – based green card and fiancé visa applications, the role of the U.S. citizen or permanent resident spouse is crucial. They are the petitioners, responsible for providing financial evidence to show they can support their spouse in the new country. This usually includes tax returns, pay stubs, and employment verification. The non – U.S. citizen spouse, as the beneficiary, has to meet certain requirements such as passing a medical exam and a background check.

Notify the Immigration Authorities: As soon as possible, the family or the surviving spouse (if applicable) should inform the U.S. Citizenship and Immigration Services (USCIS) about the death of the petitioner. This can be done by sending a letter to the USCIS office that has jurisdiction over the case. The letter should include the name of the petitioner, the case number (if known), and a copy of the death certificate.

Gather Documentation: Along with the death certificate, it’s important to collect all relevant immigration documents related to the case. This includes the approved Form I – 130, any notices from USCIS, and any correspondence between the couple and the immigration authorities.

Self – Petitioning Widow(er) Status: In the United States, if the marriage was valid and had lasted at least two years at the time of the petitioner’s death, the surviving spouse may be eligible to apply for a green card as a self – petitioning widow(er). The surviving spouse must file a new Form I – 360, Petition for Amerasian, Widow(er), or Special Immigrant. They also need to provide evidence of the marriage, the petitioner’s death, and that they have not remarried since the death.

Exception for Less Than Two – Year Marriages: If the marriage lasted less than two years, the surviving spouse may still be eligible for a green card under certain circumstances. For example, if the death of the petitioner was due to domestic violence committed by the surviving spouse, or if the marriage was terminated due to extreme cruelty or battery. The surviving spouse will need to prove these exceptional circumstances when applying for a green card.

Derivative Benefits: If the couple had children, and the children were included in the original immigration petition, they may also be eligible for derivative benefits. In the case of a self – petitioning widow(er), the children can be included in the Form I – 360 application. However, the children must meet certain requirements, such as being unmarried and under a certain age (usually 21).

Separate Petitions: In some cases, if the children are not eligible for derivative benefits, they may need to file separate immigration petitions. For example, if an adult child was included in the original petition but is no longer eligible due to age or marital status changes, they may need to explore other family – based or employment – based immigration options.

Similar to the family – based green card process, the first step is to notify the USCIS about the death of the petitioner. This should be done by sending a letter with the necessary details and a copy of the death certificate to the USCIS office handling the case.

Alternative Immigration Paths: Since the fiancé (K – 1) visa is specifically for marriage to the petitioner, with the petitioner’s death, this visa option is no longer viable. The fiancé(e) may need to explore other immigration options. One possibility is to see if they are eligible for a different family – based visa, perhaps through another eligible family member. For example, if the fiancé(e) has a U.S. citizen parent or sibling, they may be able to start the family – based immigration process through them.

Humanitarian Parole: In some cases, the fiancé(e) may apply for humanitarian parole. This is a discretionary option that allows an individual to enter the United States for urgent humanitarian reasons or significant public benefit. The death of the fiancé and the resulting difficult situation may be considered as a humanitarian reason. However, the approval of humanitarian parole is not guaranteed and is at the discretion of the Department of Homeland Security.

Support and Communication: In the case of a fiancé (K – 1) visa, the relationship with the petitioner’s family can be crucial. After the petitioner’s death, the fiancé(e) may still maintain a connection with the family. The family may be able to provide support, both emotionally and in some cases, with information or assistance regarding potential immigration options. Open communication with the family can help the fiancé(e) understand if there are any family – based immigration possibilities through other family members.

Hiring an Immigration Attorney: Given the complexity of immigration laws and the unique circumstances when a spouse dies during the immigration process, it’s highly recommended to hire an immigration attorney. An attorney can guide the surviving spouse or fiancé(e) through the legal maze, explain their rights and options, and help them prepare and file the necessary paperwork. They can also represent the individual in any interactions with the USCIS or other immigration authorities.

Pro Bono Services: For those who cannot afford an attorney, there are pro bono immigration legal services available. Many non – profit organizations and legal clinics offer free or low – cost legal assistance to immigrants. These services can be found by searching online, contacting local community centers, or reaching out to immigrant advocacy groups.

Support Networks: Losing a spouse is an incredibly difficult experience, and during the immigration process, it can be even more overwhelming. It’s important for the surviving spouse or fiancé(e) to lean on their support networks. This includes family, friends, and community groups. In some cases, there may be support groups specifically for immigrants who have experienced loss. These groups can provide a safe space to share experiences, receive emotional support, and get practical advice.

Mental Health Resources: Grief can take a toll on one’s mental health. It may be beneficial to seek professional help from a therapist or counselor who specializes in grief and loss. Many communities have mental health resources available, and some may even offer services in languages other than English to better serve immigrant populations.

Case of Mr. and Mrs. Rodriguez: Mr. Rodriguez, a U.S. citizen, filed a Form I – 130 for his wife, Mrs. Rodriguez, who was from Mexico. The petition was approved, and they were waiting for the next steps in the process when Mr. Rodriguez suddenly passed away. Mrs. Rodriguez, devastated by the loss, was unsure of what to do. She consulted an immigration attorney who informed her that since their marriage had lasted over two years, she was eligible to apply as a self – petitioning widow(er). With the help of the attorney, Mrs. Rodriguez filed a Form I – 360. She provided evidence of their marriage, such as wedding photos and joint bank accounts, along with Mr. Rodriguez’s death certificate. After a few months of waiting and a successful interview, Mrs. Rodriguez was granted a green card.

Case of John and Maria: John, a U.S. citizen, filed a Form I – 129F for his fiancé, Maria, from the Philippines. Before Maria could travel to the United States, John died in an accident. Maria was heartbroken and confused about her immigration options. She reached out to a local immigrant support group. Through the group, she learned about the possibility of applying for humanitarian parole. With the help of a pro bono attorney provided by the support group, Maria gathered evidence of her relationship with John, including their correspondence and plans for the future. She also explained her difficult situation in the application for humanitarian parole. Although it took several months, Maria’s application was approved, and she was able to enter the United States.

The death of a spouse during the immigration process is a tragic and complex situation. However, it’s important to know that there are options available for the surviving spouse or fiancé(e). By understanding the immigration laws, notifying the authorities promptly, seeking legal advice, and leaning on support networks, individuals can navigate this difficult time. Each case is unique, and the outcome depends on various factors such as the type of immigration process, the length of the marriage, and the availability of evidence. While the emotional toll may be heavy, taking the necessary steps can help ensure that the surviving individual can still build a life in the country they had hoped to share with their spouse. It’s crucial to approach these situations with patience, perseverance, and a willingness to explore all possible avenues.