For many years, foreign nationals were barred from getting immigration benefits following the death of their United States Citizen or Legal Permanent Resident spouse or relative. During this time, the applications were automatically denied if the qualifying citizen or LPR relative died before everything was approved by Immigration. In 2009, the law changed to allow the foreign national to remain eligible for the benefits even though their qualifying relative passed away.

Now, a foreign national who was married to the U.S. citizen for less than two years at the time of the death is allowed to get benefits based on the marriage. This new rule applies to petitions or applications that were decided on or after October 28, 2009. Now, widows (or widowers) and unmarried children under age 21 may file an I-360 within two years of the death of the U.S. citizen spouse, parent or step-parent. If the citizen, who is now dead, previously filed an I-130 on behalf of the relative, then it automatically converts into an I-360 upon their death. If the sponsor dies after the Petition for Alien Relative (Form I-130) and Application for Residency (Form I-485) are approved, then the foreign national will not have to file a Form I-751 petition to remove conditions.

In order to qualify, the foreign national must show that they lived in the U.S. when their relative died, continues to reside in the U.S. on the date of the decision of the pending petition or application and meets the basic requirements for admission. The most common grounds for inadmissibility include health-related grounds, economic or public charge grounds, a criminal violation or violation of immigration laws.

In order to have the application approved, the foreign national must be admissible or able to obtain a waiver of inadmissibility. Unfortunately, the death of a relative does not relieve foreign nationals from submitting an Affidavit of Support. They must find a substitute sponsor to submit that form. The Affidavit of Support is a contract between the sponsor and the government which states that the sponsor will provide for the foreign national if they cannot support themselves. This is required in cases where foreign nationals cannot demonstrate that they are able to support themselves.