A November 9, 2007, memorandum from USCIS’s Associate Director of Domestic Operations Michael Aytes has reaffirmed the Ninth Circuit's discretion to approve pending I-130 petitions in which the petitioning spouse has died. For cases within the jurisdiction of the Ninth Circuit, USCIS adjudicators are instructed to follow the Freeman v. Gonzales decision (444 F.3d 1031 9th Cir. 2006) which grants adjudicators discretion to approve Form I-130s if the petitioning spouse dies before case adjudication. Outside the Ninth Circuit, Freeman does not apply. In those jurisdictions, USCIS adjudicators remain legally obligated to observe the cases of Matter of Sano (19, I&N Dec. 299 BIA 1985) and Matter of Varela (13 I&N Dec. 453 BIA 1970) as precedents (8 CFR Section 1003.1(g)) and to refuse approval if the U.S. citizen petitioning on behalf of the alien beneficiary dies before adjudication.

The traditional view of cases similar to those of Sano and Varela in which the I-130 petitioner dies before adjudication was to deny the Form I-130 on the basis that the beneficiary is no longer a "spouse" (i.e., a married person).

Using Sano and Varela as precedents, "spouse" is commonly defined to mean "married to another person." When the petitioning spouse dies, the beneficiary is no longer considered married to the deceased and, consequently, cannot be considered a spouse. Outside of the Ninth Circuit, the beneficiary must remain eligible as a spouse of a U.S. citizen from the point of filing to the time of adjudication. Now, outside of the Ninth Circuit, the beneficiary is considered a widow(er) of a U.S. citizen and must begin proceedings as such. Furthermore, adjudicators outside of the Ninth Circuit may also revoke an approved Form I-130 upon the death of the petitioning spouse under 8 CFR 205.1(a)(3)(i)(C).

Within the jurisdiction of the Ninth Circuit, adjudicators, under Freeman v. Gonzales, may use discretion in approving such I-130s on the basis that the beneficiary was a spouse at the time of filing and that the meaning of the term "spouse" does not change after one spouse has died.

Alternative options for petitioners outside the Ninth Circuit include: 

  • Promptly filing Form I-360 as a widow(er) of a U.S. Citizen if the widow and deceased petitioner were married for at least two years at the time of the death and the widow(er) remains otherwise eligible to file Form I-360 (8 CFR 204.2(i)(1)(iv) and 205.1(a)(3)(i)(C)(1) as amended); or 
  • If the petitioning spouse dies after a Form I-130 has been approved, USCIS may reinstate the petition if the beneficiary spouse has found a substitute sponsor for Form I-864 and remains otherwise eligible to adjust status (8 CFR Section 205.1(a)(3)(C)(2)).