Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: My husband had petitioned me and he just died. Now I’m all alone and have no petiton. What can I do?

Answer: I am very sorry for the loss. Actually, there might something you can do. There is what is known as the I-360 Widow Petition. It may be able to be converted. Section 568(c) of the FY 10 DHS Appropriations Act Public Law 111-83, enacted on 10/28/09, amended existing benefits for surviving spouses of U.S. citizens.
The DHS Appropriations Act amended the widow/widower provisions to remove the 2 year marriage requirement.

Question: What are the basic requirements for this I-360 Widow Petition to be converted?

Answer: An I-130 spousal petition:
– that was pending when the U.S. citizen spouse died is adjudicated as a pending I-360 widow/widower petition.
If the I-130 was approved when the U.S. citizen spouse died, it is treated as an approved I-360 widow/widower petition.
The surviving spouse must meet the legal requirements for widow/widower classification and must not have remarried.

Question: What exactly are those requirements?

Answer: The deceased was a U.S. Citizen;
The deceased spouse had already filed Form I- 130 on behalf of the surviving spouse; The marriage to the citizen was bona fide; The surviving spouse and citizen were not legally
separated at the time of death, and the surviving spouse has not remarried.

Question: Is there anyone else that might be able to receive I-360 Conversion Benefits?

Answer: Children of widows/widowers are eligible for derivative classification.
They can be included in the approved I-360 and follow to join the principal.
When the widow/er’s approved or pending I-130 converts to an approved or pending I-360, the children are included, regardless of whether the U.S. citizen step-parent had filed separate petitions for them.
If the children are able to adjust based on the I- 360, any previously submitted I-130, in their behalf, will be terminated.

Question: How is I-360 Conversion Requested?

Answer: Conversion need not be requested, as it occurs automatically for both pending and approved I-130 petitions.
The beneficiary does, however, need to inform USCIS of the petitioner’s death, and provide a death certificate.

Question: Are there other Ways to Obtain Widow/Widower Classification via Form I-360
if the surviving spouse did not have a pending or approved I- 130 on file when the U.S. citizen spouse died?

Answer: He/she may file Form I-360 in the following situations: If a spousal I-130 was denied before 10/28/09, Form I-360 must be filed on or before 10/28/11; A spousal I-130 was never filed and the citizen’s death occurred before 10/28/09; Form I-360 must be filed on or before 10/28/11.

That deadline is quickly approaching and should be filed right away.

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