I am hoping for some positive information.

A friend of mine sponsored his K1 fiance.
After she arrived here into the us,
unfortunately he had to be admitted to the hospital and operated on.
right before the operation they got married
after the operation he suffered a heart attack, and is now in a coma.
He is not expected to survive.
He did not have time to submit the paperwork (I130 I485) though they were trying to complete it before the operation he underwent

what options does she have? with the death of her husband does her legal right to stay in the states terminate?
any help is appreciated.

Typically the USCIS has taken a hard line on this situation, but if I remember correctly there is recent court litigation quite favorable in this situation.... Hopefully someone has a link.....

PS.. No I-130 is required to adjust from K-1.. just the I-485.

I think she should consult a qualified immigration attorney on this one.




I thought that recent case, the man was in the armed forces and that helped her case.

Firstly did you marry the petitioner within 90 days of entry? If you did then I-130 is not needed.

You should be able to apply for adjustment of status as a widow.

I believe you will be filing I-360 to classify as a widow, you file I-485, and I-360 together to the Chicago PO box.

http://www.uscis.gov/portal/site/uscis/men...00045f3d6a1RCRD

Yes, She did marry 1 week after arrival. If anyone else can confirm or illustrate more, I'd be grateful for the information.

Not the case I am thinking of... maybe more than one.... all the better....

Actually NPR carried the story of 5 spouses of deceased USC's that the USCIS told could no longer stay in the US. This was in the last 10 days. These 5 fought their deportation and won. Of course I missed the story, but a quick check on www.npr.org might give some more background.

First I would like to say I am sorry she lost her husband. She is subject to the widow penalty which is that she will be denied a greedcard because she was not married for two years before her husband's death. If I were her I would contact the lawyer that has the class action lawsuit with USCIS over this issue and see what he suggests. If she really wants to stay in the US she is going to have to get creative to obtain her greencard.
He is in a comma correct? She can file her I-485 and get a letter from her doctor that her husband cannot attend the interview if she even has one? I know this sounds really really bad but if she wants to stay in the US then she can try and keep him on life support until the two years are up? I only say this because from everything I have read about the window penalty is that even if a to court tries to overturn a USCIS denial they use other reasons to deny. The only other option is to get a Senator to sponsor a private bill for a greencard.

They didn't win, USCIS used other reasons to deny. The lawyer said that it is his life battle to change this law because USCIS has the right to deny anyway and their decision cannot be reviewed by the courts.

you 're right that sound awfull

Yeah, I heard the NPR story. There was a long interview with the attorney involved on "This American Life" (that may not be the same story you were thinking of). I will try to look for a link for you later, but you could try npr.org. Basically, he got a ruling in favor of the widow he was representing, and then USCIS invoked some discretionary clause to deny her anyway. He has 130 similar cases.

Sorry I could not be more helpful. This is a situation where she definitely needs a good attorney.

Also, you said that your friend is "not expected" to survive. I personally know two people who survived after being given a 10% chance of survival (different things). I hope that your friend will also beat the odds. If not, my condolences to you and to his wife.

http://www.thislife.org/Radio_Episode.aspx?episode=353

here is the link to the story in starts somewhere in the middle of the radio program.

Act Two. This American Wife.

This American Life contributor Jack Hitt uncovers a strange practice within the U.S. Citizenship and Immigration Service. If a foreign national marries a U.S. citizen and schedules an interview for a green card, but the U.S. citizen dies before the interview takes place, the foreign national is scheduled for deportation with no appeal—even if the couple has children who are U.S. citizens. Jack talks with Brent Renison, a lawyer who's representing over 130 people in this situation, mostly widows, who are seeking to overturn the Immigration Service's rule. (20 minutes)

I would contact this lawyer!

That's the one I was thinking of from NPR. I didn't notice that someone had posted the link already.

For more clarification.. despite the widower statement that allows one to file the I-485 combined with the I-360 she has no option other then court? This is not positive since she is brand new to this country.

I'm looking at the form Dan linked now (the self-petitioning widow or widower or special immigrant form). According to that, she would qualify. If your friend does not make it, she will be the widow of a US citizen who died within the last two years. That is one of the categories.

What seems to be going on with similar cases, though, is they deny them on other grounds in spite of this. That's why we are all recommending getting an attorney. Having an attorney and going to court are not the same thing. There are many couples on here who have an attorney representing them just dealing with the administrative agency (which is what USCIS is).

What would most likely happen is she'd start by filling out that petition and whatever other forms are required along with it. If it gets denied, there is some process of review within USCIS. In general, once you use up every level of appeal available to you in an administrative agency, you can then seek review by an actual court. Which is probably more than you want to know.

No matter what, though, her situation is more complicated than what most of us have to deal with, so having someone who specializes in cases like hers to guide her through it would be really valuable.

I finally looked it up - it is in the 3/28 program of This American Life, and it'll about make you want to go throttle someone in DC

Oh if I were her I'd run back home.
That's sad .

I think this thread belongs to the appropriate forum: Effects of divorce etc...including the loss of partner in the immigration process; it's Diandromus's kingdom and she'll certainly will be please to reply...I've read similar case not long ago i think...God luck to your friend!!!

But what if she wants to stay in the US? Shouldn't she be entitled to her husband's SSI?

Thank you all for your posts. Tom passed away on Saturday, so if anyone has more to offer, I will pass it on.

I'm sorry to hear that.

Knowledge is right--you may get more guidance if you post this same question in the forum for "effect of major family changes" (keep scrolling down and you will see it).

Our Condolence to the family..

Unfortunately, to qualify under this category, the marriage must have endured a minimum of two years.

The best advice I can give now that the husband is dead, is for somebody to step in and help this widow protect her financial status. Did he have will? Does she have access to funds? etc.

sorry to hear about her loss!!

Pushbrk is correct.

Also does she have access to his money? assets? how will she support herself? she cant legally work until she gets a green card. All the immigration support docs are to make sure she doesnt become a public charge. Since she cant work and he is gone, that is a possibility. They will deport her.

To get the husbands SSI they have to be married for a much longer period of time than a few weeks. If he had an ex wife then its 10 years for the new wife to get his SSI. The ex will get it under 10 years.
While i am saddened by this situation and feel horrible for her, She came to the US to be with him and share his life.

If he dies and its within the first few weeks of her being here, then she has no ties, no support system, she cant work, even to pay his bills, and no life here. Where will she stay if he didnt own a home. She is not even on the lease etc if they are newly married. She will have to return to her home. Her reason for being here is now gone. US immigration granted her the visa to be the wife of this guy. That wont happen now.

This happened last year on another site. The lady was in country 2 weeks and the guy was killed in a motorcycle accident. They were newly married. She had to return back to her country also. Its unfortunate. Maybe there is hope he will survive, but without him she has no ties here and will in the end return to her country. it is paramount the narriage is long enough for a green card to be granted. Anything before and you will be deported. I have seen cases where the guy was killed in military service and still the wife and kid were deported becuase the paperwork wasnt processed and green card given. Personally in those cases i dont think that is fair, but right now its the way it is.


Chris

USCIS wqill send her a etter telling her to leave....sad but true. No law allows the widow to complete the AOS.

Sorry, Chris.... I'm trying to clarify this in my head. Are you saying that a spouse who has not been married for 10 years would not receive the SSI should the other spouse pass away?.... that it would go to any former spouse(s)? I'm a bit confused by this.

As shocking as that might seem... the answer is that it could go to the ex-spouse.

That sucks! I am telling my wife to put me on life support until our 10th anniversary! I have to check into this and see what I have to do.
Thanks for this info.

Wow. Yes, that's shocking.


Would you mind letting us know what you find, G&T?

It has something to do with age of the spouses at the time of the remarriage.

Lemme see what I can find:

*searching*

Ah. Here it is.

"In general, you cannot receive survivors benefits if you remarry before the age of 60 unless the latter marriage ends, whether by death, divorce, or annulment. If you remarry after age 60 (50 if disabled), you can still collect benefits on your former spouse's record. When you reach age 62 or older, you may get retirement benefits on the record of your new spouse if they are higher.
Your remarriage would have no effect on the benefits being paid to your children."

http://www.ssa.gov/ww&os2.htm

Also this:

http://www.ssa.gov/online/ssa-10.html

Will check those links in a minute. Thanks RJ. So, the way I read this is that a former spouse can collect benefits on a deceased ex-spouse unless they remarry before age 60, etc, etc. If they don't remarry, they can collect. Is this correct?

I think that's right.

I remember researching this recently because I've got an ex who makes a ton of money. His SS will likely be way higher than Wes (one of the disadvantages of an 'older' person coming to the US is they don't have time to build the SS fund like a citizen does - Wes was 42 when he moved here).

For some reason, there's something tickling in my brain about divorce before the age of 50. But I could have imagined that.

My parents divorced after 25 years, and i remember when my dad remarried ( several years later) my mom saying the new wife would have to be married to him for ten years in order to take his SSI away from her. She has never remarried.

Chris

She can't 'take it away'.

They can both draw it.

actually in her case it didnt matter. the marriage he had after her didnt last ended in divorce a few years later.


Chris

Yes, I found this in one of the links RJ provided:

Benefits paid to a surviving divorced spouse who is 60 or older (age 50 if disabled) will not affect the benefit rates for other survivors receiving benefits.

I was only married to my ex for 9 years so she gets nothing from me HAHAHAHAHAHA, I couldn't have planned it better. Now from what I understand if I were to die and still be married regardless of the time married my wife is entitled to my SS as well as our son together.

I am sorry to hear about your friend. Unfortunately, bad news also befalls his new bride. Their marriage was too young to permit the alien to self-petition for immigrant status, and a K-1 visa holder must adjust status through the initial petitioner, so there's little chance for her to think of adjusting status any other way. I would recommend she consult an immigration attorney, but do so soon, as she does not want to complicate her future travels to the USA (Should she wish to) by an overstay that could trigger some sort of bar.

I agree completely but there seems to be an unspecified period of limbo as to her status. She fulfilled the terms of the visa by getting married and had the USC husband lived, there's no specific time frame within which the AOS must be filed. I'm curious just how long she could stay without triggering a bar. Probably there's no hard and fast answer.

I would want to go home tom y family if my husband died within 2 weeks of marriage. what was she feeding him??

And before the do gooders around here jump on me, its about the BIG PIcture!! WHy would people be talking about and worried about immigration when the loved one is in coma and possibly dying??? Sweet tone and sweet looks does not mean that there is not a Immigration Pirahna insides!!! case in point!

It would depend upon the person but maybe coming to America was the bonus of marriage to a USC and she may want to stay? It is the land of opportunity.

Land of oppurtunity. its global market how about the earth of oppurtunity. appreciate your honesty though. sounding like she neede to get a work or business visa instead of swimming the river of "im going to marry and old fart" visa.

Uh oh, aren't we a little judgemental here? Who said the guy was old or she just married him for the opportunity to be in the US? Heartconditions are not age related!

I have to say though, I think if I was in that situation, I would just want to go back to my homecountry where I would have the comfort and support of friends and family to help me through the time of grieve.
However, this lady might not have a home to go back to. I don't really see a (legal) way for her to stay in the US though longterm.

This thread is not about SSI. It's focusing on helping the spouse obtain status to legally live in the US. SSI is a means to support living which she's not concerned about it at the moment. What good is retirement when she cannot live here.

While the purpose of the thread was to discuss the spouse's options for remaining in the US, it was quickly put to bed. She will not be allowed to stay with legal status. SSI doesn't help her live her but having the income will be good no matter where she lives. If she's entitled to it, helping her secure it is probably the best any of us could do for her at this time.

As far as I am aware, if she departs within 179 days of the expiry date of her I94, no bar is incurred.