Philadelphia Immigration Lawyer Blog

On December 12, 2007, the U.S. District Court for the District of Massachusetts, in Taing v. Chertoff, joined the 9th Circuit Court of Appeals in its decision, Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006) and the United States District Court for the District of New Jersey in its unpublished decision, Robinson v. Chertoff, 2007 WL 1412284 (D.N.J., May 14, 2007) in ruling that a properly filed I-130 Immediate Relative Petition does not automatically lapse if the petitioning U.S. citizen spouse dies while the application is pending. Recall that the I-130 is the application that is filed by either a U.S. citizen or U.S. permanent resident for certain “immediate relatives” including, of course, a spouse.

It has been the USCIS position that where a U.S. citizen files an I-130 for a spouse and then dies while that I-130 is pending, the I-130 must then be denied—basically because if the deceased U.S. citizen spouse dies before the I-130 is decided, then he or she is no longer the immediate relative of the non-citizen spouse.

As I posted back in November 12, 2007, the USCIS has instructed its adjudicators to continue to deny any I-130 application--outside the 9th Circuit--where the U.S. citizen spouse dies during the pendency of the I-130 application. Basically, the USCIS is instructing its adjudicators to ignore Freeman everywhere outside the 9th Circuit. Now, in light of the Massachusetts and New Jersey decisions, the USCIS may need to re-think its memorandum.

The Massachusetts and the New Jersey court decisions have both agreed with the 9th Circuit's reasoning in Freeman.

In both cases, the courts ruled that the death of the U.S. citizen spouse did not end the legal relationship between that U.S. citizen spouse and alien spouse—they are still immediate relatives, even after the death of the U.S. citizen, and the surviving spouse still has standing to pursue an adjustment of status application at the approval of the I-130.

The Courts' rulings in Massachusetts and New Jersey make complete legal and common sense, as did the 9th Circuit Court of Appeals decision in Freeman.

We’ll see how the USCIS responds now that two U.S. District Courts have agreed with reasoning of the U.S. 9th Circuit Court of Appeals—reasoning that the USCIS has instructed its adjudicators to ignore.