Visa on hand, but petitioner dies

[reginakrys 33]

I know of someone whose husband died a week before the wife's flight to the US. It's heartbreaking, and she wants to be there to take care of her husband's funeral arrangements. Can she do this using the ir1 visa she has right now? Furthermore, can she stay in the US even after the funeral? In this case, is naturalization off the table for her? I was just wondering because spousal visas are supposed to bring families together,right? But in this case it seems there is no more family.

[Anh map 2,098]

The person has a green card and can live in the US. They can apply for citizenship after 5 years.

[JimVaPhuong 4,863]

I know of someone whose husband died a week before the wife's flight to the US. It's heartbreaking, and she wants to be there to take care of her husband's funeral arrangements. Can she do this using the ir1 visa she has right now? Furthermore, can she stay in the US even after the funeral? In this case, is naturalization off the table for her? I was just wondering because spousal visas are supposed to bring families together,right? But in this case it seems there is no more family.

Interesting question.

The petition isn't a request for a visa. It's request that the beneficiary be permitted to immigrate to the US and become a permanent resident. Part of this process is obtaining an immigrant visa, but the process isn't completed until the beneficiary enters the US with that immigrant visa and becomes a permanent resident. The petition continues to be important up until the point that the beneficiary enters the US. In fact, the petitioner could withdraw the petition anytime up until that point.

In many cases, the petition automatically dies when the petitioner dies. However, that's no longer always the case. Under current law, signed by the President in 2009, when a US citizen files an I-130 for their spouse, and the petitioner subsequently dies, the I-130 is treated as a properly filed I-360 self-petition. If the petitioner dies after the petition is approved then the petitioner is treated as a properly approved I-360 self-petition. This means her eligibility for a visa didn't change when her husband died. What DID change is her visa category. A self-petitioning widow would be an IW1, and not an IR1.

The visa category will almost certainly not be an issue at the port of entry if she uses that visa to enter the US, presuming neither DHS nor Department of State has been notified of her husband's death. Whether it could become an issue later is unknown to me. The requirements for an IR1 and a IW1 are not the same. For example, an IW1 does not require an affidavit of support since the beneficiary is petitioning for themselves. If she ends up needing to use emergency Medicaid for a hospital visit, for instance, and the state decides to go after her sponsor for reimbursement, then the fact that the sponsor has expired will eventually be discovered. This could end up rippling back through to USCIS, who could determine that she entered on the US under the wrong admission category. Frankly, I'm just not sure.

If this were me in her shoes, then in the interest of covering all the bases I would go to the consulate with a copy of the death certificate and ask if I needed a new visa with an IW1 admission class.