A.L. Bell

My European spouse was more than 6 months out of status when we got married (for real
live genuine love). Now my spouse has a conditional green card.

The question: if I die before it's time for us to go in for the interview that
removes the conditions, can my spouse still get the conditions taken off pretty
easily, or would it all be a big hairy mess?

Thanks for your help.

Andy Platt

"A.L. Bell" <[email protected]> wrote in message
news:[email protected]...
    > My European spouse was more than 6 months out of status when we got married (for
    > real live genuine love). Now my spouse has a conditional green card.
    >
    > The question: if I die before it's time for us to go in for the interview that
    > removes the conditions, can my spouse still get the conditions taken off pretty
    > easily, or would it all be a big hairy mess?

It would be very easy. If you obtained conditional permanent residence through
marriage to a US citizen and that US citizen dies, you just file the I-751 with the
death certificate. Nothing more is needed - it's not like divorce where you have to
prove you entered into the marriage in good faith.

The unfortunate part comes if you haven't adjusted status - if you haven't yet been
married two years you are SOL.

Andy.

--
I'm not really here - it's just your warped imagination.

S.M.

SOL?

Shelley

"Andy Platt" <[email protected]> wrote in message
news:[email protected]... <snip>
    > The unfortunate part comes if you haven't adjusted status - if you haven't yet been
    > married two years you are SOL.
    >
    > Andy.

Wasn't there a gentleman who posted here a few years ago who was waiting to Adjust
Status, and his wife passed away - and he and his lawyer filed a I-360 petition and
he was able to adjust status and remain in the US?

I can't seem to remember his name, or I would do a Google search for it. Take
Care. Shelley

Andy Platt

S**t outof luck.

Andy.

--
I'm not really here - it's just your warped imagination. "S.M." <[email protected]> wrote in
message news:[email protected]...
    > SOL?

S.M.

a very apt phrase!

Rete

That was Linda's husband Canadian husband. I believe his name was Nick. They were using the Chicago office. His problem was a bit more complicated as they had had the interview for AOS and it was put on hold for more information which was provided. However, the DAO had not finalized the decision on the AOS when Linda passed away.

Rete

Andy Platt

Exactly why I made the point about being married two years. If you have been married
for two years and your USC spouse dies you can still file for permanent residence and
the form is I-360.

Andy.

--
I'm not really here - it's just your warped imagination. "Shelley"
<[email protected]> wrote in message
news:[email protected]...
    > "Andy Platt" <[email protected]> wrote in message
    > news:[email protected]... <snip>
    > > The unfortunate part comes if you haven't adjusted status - if you
haven't
    > > yet been married two years you are SOL.
    > >
    > > Andy.
    >
    > Wasn't there a gentleman who posted here a few years ago who was waiting
to
    > Adjust Status, and his wife passed away - and he and his lawyer filed a I-360
    > petition and he was able to adjust status and remain in the US?
    >
    > I can't seem to remember his name, or I would do a Google search for it. Take
    > Care. Shelley

Chris Parker

    > The unfortunate part comes if you haven't adjusted status - if you haven't yet been
    > married two years you are SOL.

If you are a married K-1 or have a previously approved I-130, they may adjust status
despite the death in their discretion.

Simultaneous filing of I-485/I-130 is much more shady...

I'd go for the adjustment interview with the death certificate of the U.S. spouse if
I were you, but this isn't legal advice of any sort.

CP

Jeffrey Scharpf

So if I die before I'm married to my fiance, or before we reach our 2 year
anniversery, she is SOL? What will the US Government do? Just kick her and her son
out? Even though she gave everything up to come here?

Sorry for the bizarre question, but I think this seems unfair...I would like to feel
that if I die tomorrow, my fiance and her son would at least have a chance here...

Shelley

"Jeffrey Scharpf" <[email protected]> wrote in message
news:[email protected]...
    > So if I die before I'm married to my fiance, or before we reach our 2 year
    > anniversery, she is SOL? What will the US Government do? Just kick her and her son
    > out? Even though she gave everything up to come here?
    >
    > Sorry for the bizarre question, but I think this seems unfair...I would
like
    > to feel that if I die tomorrow, my fiance and her son would at least have
a
    > chance here...

If you died tomorrow, your fiancée and her son would have to leave the US. Without
you, they would have no basis to file for Adjustment of Status. So stay safe and
healthy until the AOS interview, and they receive those I-551 stamps in their
passports. Take Care. Shelley

Andy Platt

"Chris Parker" <[email protected]> wrote ...

    > > The unfortunate part comes if you haven't adjusted status - if you
haven't
    > > yet been married two years you are SOL.
    >
    > If you are a married K-1 or have a previously approved I-130, they may adjust
    > status despite the death in their discretion.
    >
    > Simultaneous filing of I-485/I-130 is much more shady...

On what basis do you make these statements?

Andy.

--
I'm not really here - it's just your warped imagination.

Chris Parker

    > > If you are a married K-1 or have a previously approved I-130, they may adjust
    > > status despite the death in their discretion.
    > >
    > > Simultaneous filing of I-485/I-130 is much more shady...

    > On what basis do you make these statements?

First of all, I'm not a lawyer of any sort and I don't have any direct experience
with this scenario.

My basis is that a married K-1 adjustment is an adjustment application based on a
previously approved petition. No further petition, such as a widow's self-petition,
is necessary for adjustment; only a finding that the qualifying marriage was proper
and that is done by the discretion of the INS examiner. Social security benefits
received from the deceased U.S. citizen spouse may be adequate to overcome the public
charge obstacle that an affidavit of support is normally needed for.

Without an approved petition, such as in the case of simultaneous I-485/I-130, the
I-130 is no longer approvable once the U.S. citizen dies and so adjustment probably
is not possible.

Finally, consider this: if it is true that you can't get yourself adjusted because
your U.S. citizen spouse died, going to the interview with the death certificate
isn't going to change anything.

CP

Andy Platt

You could be right that K-1ers are in a better position. The law automatically
revokes the I-130 petition if the spouse dies prior to entering the US (immigrant
visa) or adjusting status:

http://www.ins.usdoj.gov/lpbin/lpext...-9554/slb-1486
9/slb-14879?f=templates&fn=document-frame.htm#slb-8cfrsec2051

(This does have a hardship "out" but it's not clear what you would have to show to
meet that; almost certainly it would *not* be the interviewer who decided this -
hardship cases go to INS officials who specialize in them). I couldn't find similar
laws for revocation of the I-129F though.

The sponsorship is another issue. I know congress voted to allow substitute sponsors
and I see language on the INS website to this effect. You do still need someone else
- you cannot sponsor yourself unless you are eligible to submit the I-360. However,
from the language it's not clear that this applies to K-1ers.

I'm not a lawyer either and this is just fun speculation.

Andy.

--
I'm not really here - it's just your warped imagination. "Chris Parker"
<[email protected]> wrote in message
news:[email protected]...
    > > > If you are a married K-1 or have a previously approved I-130, they may adjust
    > > > status despite the death in their discretion.
    > > >
    > > > Simultaneous filing of I-485/I-130 is much more shady...
    >
    > > On what basis do you make these statements?
    >
    > First of all, I'm not a lawyer of any sort and I don't have any direct experience
    > with this scenario.
    >
    > My basis is that a married K-1 adjustment is an adjustment application based on a
    > previously approved petition. No further petition, such as a widow's self-petition,
    > is necessary for adjustment; only a finding that the qualifying marriage was proper
    > and that is done by the discretion of the INS examiner. Social security benefits
    > received from the deceased U.S. citizen spouse may be adequate to overcome the
    > public charge obstacle that an affidavit of support is normally needed for.
    >
    > Without an approved petition, such as in the case of simultaneous I-485/I-130, the
    > I-130 is no longer approvable once the U.S. citizen dies and so adjustment probably
    > is not possible.
    >
    > Finally, consider this: if it is true that you can't get yourself adjusted because
    > your U.S. citizen spouse died, going to the interview with the death certificate
    > isn't going to change anything.
    >
    > CP

Chris Parker

    > You could be right that K-1ers are in a better position. The law automatically
    > revokes the I-130 petition if the spouse dies prior to entering the US (immigrant
    > visa) or adjusting status. I couldn't find similar laws for revocation of the
    > I-129F though.

Actually, K-1 adjustment is based on entry with a K1 visa and subsequent marriage
within 90 days of admission to the U.S. citizen petitioner, and therefore only
indirectly based on a previously approved petition.

    > (This does have a hardship "out" but it's not clear what you would have to show to
    > meet that; almost certainly it would *not* be the interviewer who decided this -
    > hardship cases go to INS officials who specialize in them).

The phrase "extreme hardship" has acquired a settled judicial and administrative
meaning, however, largely in the context of suspension of deportation cases under
section 240A of the Act... (taken from 61 FR 13061). In particular, INS has
established rules found at 8 CFR
240.58(b) regarding what factors in general contribute towards a finding of
extreme hardship:

8 CFR 240.58(b) To establish extreme hardship, an applicant must demonstrate that
deportation would result in a degree of hardship beyond that typically associated
with deportation. Factors that may be considered in evaluating whether deportation
would result in extreme hardship to the alien or to the alien's qualified relative
include, but are not limited to, the following:
(241) The age of the alien, both at the time of entry to the United States and at the
time of application for suspension of deportation;
(242) The age, number, and immigration status of the alien's children and their
ability to speak the native language and to adjust to life in the country
of return;
(243) The health condition of the alien or the alien's children, spouse, or parents
and the availability of any required medical treatment in the country to which
the alien would be returned;
(244) The alien's ability to obtain employment in the country to which the alien
would be returned;
(245) The length of residence in the United States;
(246) The existence of other family members who are or will be legally residing in
the United States;
(247) The financial impact of the alien's departure;
(248) The impact of a disruption of educational opportunities;
(249) The psychological impact of the alien's deportation;
(250) The current political and economic conditions in the country to which the alien
would be returned;
(251) Family and other ties to the country to which the alien would be returned;
(252) Contributions to and ties to a community in the United States, including the
degree of integration into society;
(253) Immigration history, including authorized residence in the United States; and
(254) The availability of other means of adjusting to permanent resident status.

Also, please note, "extreme hardship" is more than a financial hardship or regular
hardship and less than "exceptional [and unusual] hardship."

    > The sponsorship is another issue. I know congress voted to allow substitute
    > sponsors and I see language on the INS website to this effect. You do still need
    > someone else - you cannot sponsor yourself unless you are eligible to submit the
    > I-360. However, from the language it's not clear that this applies to K-1ers.

Self-sponsorship does not exist. I-360 battered spouses and widows do not need any
sponsorship, nor do employment-based immigrants unless they are more than 5% (I
think) owners of a U.S. company. In the case of a widow, in particular, SSA benefits
for a surviving spouse should be convincing enough to show that she will be living
above the poverty level and will not be able to become a public charge for the rest
of her life. I could be wrong, but I think the benefit report from SSA would be
acceptable in lieu of any otherwise required affidavit of support.

CP

PS: Stay alive and enjoy your marriage!