Immigrant Daily

Losing a loved one doesn’t mean your pending petition will be denied.

In Neang v. Chertoff, the District Court of Massachusetts agreed with the Ninth Circuit’s interpretation of INA §201(b)(2)(A)(I) in Freeman V. Gonzales, holding that an I-130 beneficiary remains an “immediate relative” after death of the spouse if the petition has been pending prior to the spouse’s death. This resolves the long standing question of what happens to a properly filed, “immediate relative” petition upon the death of the U.S. citizen spouse?

The holding means that in situations where the petition has been filed properly, and the U.S. citizen passes away, the beneficiary spouse’s case will not be denied due to the death of the citizen spouse. Please note that this addresses situations, where the petition has already been filed. In situations where the petition has not been filed yet at the time of the citizen’s death, the law is fairly clear – the alien will still be considered for “immediate relative” status if the alien was married to a U.S. citizen for at least 2 years at the time of the citizen’s death, and was not legally separated from the citizen at that time. If the alien meets these requirements, s/he must file an “immediate relative” petition within 2 years of the citizen spouse’s death and before s/he is married.