Philadelphia Immigration Lawyer Blog

In a written memorandum dated November 8, 2007, the USCIS has reaffirmed its regrettable view that when an I-130 visa petitioner dies while the I-130 petition is still pending, the USCIS no longer has authority to approve the petition. This position is very different than the one held by the 9th Circuit Court of Appeals in the case of Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), and, in fact, the position of the USCIS is not the law in the 9th Circuit . However, in all other jurisdictions, it's the USCIS position and not Freeman v. Gonzales, that's controlling on USCIS adjudicators, something that will result in great hardship to many individuals and families.

An I-130 application is filed by either a U.S. citizen or a U.S. permanent resident on behalf of a “immediate” relative; in the case of a U.S. citizen the relative can be, for example (and with some qualifications) a spouse or an unmarried child under 21 years of age or a parent or a brother and sister and for a permanent resident, for example, the relative can be a spouse or an unmarried child.

The I-130 often takes a long time to be decided and, of course, sometimes the U.S. citizen or the permanent resident dies while the I-130 is still pending. The USCIS has taken the position that when this happens, it must deny the I-130 because the qualifying relationship no longer exists.

In its memorandum, the USCIS has instructed its adjudicators 1) to deny a Form I-130 if the visa petitioner dies after the visa petitioner filed the Form I-130 and before USCIS has adjudicated the Form I-130 and 2) to not follow the decision in Freeman v. Gonzales, in any case arising outside the Ninth Circuit because, in its view Freeman was “wrongly decided”.

One of its criticisms of Freeman is that the Freeman court didn’t give the term “spouse” its common, ordinary meaning. According to the USCIS, the term “spouse” is clearly understood by everyone to refer to a relationship that ends at death. In its memo, the USCIS writes that at the death of a spouse, “the other person, then, is no longer a married person and, by definition no longer a spouse.”

In my view, it’s the USCIS that is failing to give the term “spouse” its common meaning. In any number of federal and state laws, the widow or widower of a deceased person is routinely referred to as the “surviving spouse” with all sorts of rights and benefits that obviously continue after the death of their husband or wife. While it may be true that the death of a spouse ends the marriage (e.g., the surviving spouse is legally free to enter into a new marriage), it doesn’t follow that the death ends all the rights and benefits that the surviving spouse enjoyed, indeed earned, as a result of being in the marriage relationship.

The memorandum did at least remind USCIS adjudicators that if the visa petitioner dies after approval of a Form I-130 – in both immediate relative and family-preference cases – then USCIS has discretion to reinstate the pre-death approval. Such discretion is to be exercised favorably only if there is a substitute sponsor who has submitted a Form I-864 in place of any Form I-864 that was filed, or would have been filed, by the deceased petitioner.