There are
two relatively new provisions to consider in addition to the special case of a spouse who can convert from an I-130 spouse to an I-360 widow(er).
Your situation would be covered by the "substitute sponsor"..............
The substitute sponsor provision of the “Family Sponsor Immigration Act of 2002” Public law 107-150 at:
http://www.uscis.gov/portal/site/us...39dc4bed010VgnVCM1000000ecd190aRCRD&CH=publaw
SEC. 2. SUBSTITUTION OF ALTERNATIVE SPONSOR IF ORIGINAL SPONSOR HAS DIED.
(a) PERMITTING
SUBSTITUTION OF ALTERNATIVE CLOSE FAMILY SPONSOR IN CASE OF DEATH OF PETITIONER-
(1) RECOGNITION OF ALTERNATIVE SPONSOR-
Section 213A(f)(5) of the Immigration and Nationality Act (8 U.S.C. 1183a(f)(5)) is
amended to read as follows:
“(5) NON-PETITIONING CASES- Such term also includes an individual who does not meet the requirement of paragraph (1)(D) but who--
“(A) accepts joint and several liability with a petitioning sponsor under paragraph (2) or relative of an employment-based immigrant under paragraph (4) and who demonstrates (as provided under paragraph (6)) the means to maintain an annual income equal to at least 125 percent of the Federal poverty line; or
“(B) is a spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild of a sponsored alien or a legal guardian of a sponsored alien, meets the requirements of paragraph (1) (other than subparagraph (D)), and executes an affidavit of support with respect to such alien in a case in which--
“(i) the individual petitioning under section 204 for the classification of such alien died after the approval of such petition; and
“(ii) the Attorney General has determined for humanitarian reasons that revocation of such petition under section 205 would be inappropriate.”.
(2) CONFORMING AMENDMENT PERMITTING SUBSTITUTION- Section 212(a)(4)(C)(ii) of such Act (8 U.S.C. 1182(a)(4)(C)(ii)) is amended by striking “(including any additional sponsor required under section 213A(f))” and inserting “(and any additional sponsor required under section 213A(f) or any alternative sponsor permitted under paragraph (5)(B) of such section)”.
(3) ADDITIONAL CONFORMING AMENDMENTS- Section 213A(f) of such Act (8 U.S.C. 1183a(f)) is amended, in each of paragraphs (2) and (4)(B)(ii), by striking “(5).” and inserting “(5)(A).”.
(b) EFFECTIVE DATE- The amendments made by subsection (a) shall apply with respect to deaths occurring before, on, or after the date of the enactment of this Act, except that, in the case of a death occurring before such date, such amendments shall apply only if--
(1) the sponsored alien--
(A) requests the Attorney General to reinstate the classification petition that was filed with respect to the alien by the deceased and approved under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) before such death; and
(B) demonstrates that he or she is able to satisfy the requirement of section 212(a)(4)(C)(ii) of such Act (8 U.S.C. 1182(a)(4)(C)(ii)) by reason of such amendments; and
(2) the Attorney General reinstates such petition after making the determination described in section 213A(f)(5)(B)(ii) of such Act (as amended by subsection (a)(1) of this Act).
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INA 204(l) {lower case "L"}
(l) 13/
SURVIVING RELATIVE CONSIDERATION FOR CERTAIN PETITIONS AND APPLICATIONS-
(1) IN GENERAL- An alien described in paragraph (2) who resided in the United States at the time of the death of the qualifying relative and who continues to reside in the United States shall have such petition described in paragraph (2), or an application for adjustment of status to that of a person admitted for lawful permanent residence based upon the family relationship described in paragraph (2), and any related applications, adjudicated notwithstanding the death of the qualifying relative, unless the Secretary of Homeland Security determines, in the unreviewable discretion of the Secretary, that approval would not be in the public interest.
(2) ALIEN DESCRIBED- An alien described in this paragraph is an alien who, immediately prior to the death of his or her qualifying relative, was--
(A) the beneficiary of a pending or approved petition for classification as an immediate relative (as described in section 201(b)(2)(A)(i) );
(B) the beneficiary of a pending or approved petition for classification under section 203 (a) or (d) ;
(C) a derivative beneficiary of a pending or approved petition for classification under section 203(b) (as described in section 203(d) );
(D) the beneficiary of a pending or approved refugee/asylee relative petition under section 207 or 208 ;
(E) an alien admitted in `T' nonimmigrant status as described in section 101(a)(15)(T)(ii) or in `U' nonimmigrant status as described in section 101(a)(15)(U)(ii) ; or
(F) an asylee (as described in section 208(b)(3)).
INA: ACT 204 FN 13
FN 13 Section 568(d)(1) of Public Law 111-83, dated October 28, 2009, added a new paragraph (l) to section 204 of the Act.
CONSTRUCTION- Nothing in the amendment made by section 568(d)(1) of Public Law 111-83 may be construed to limit or waive any ground of removal, basis for denial of petition or application, or other criteria for adjudicating petitions or applications as otherwise provided under the immigration laws of the United States other than ineligibility based solely on the lack of a qualifying family relationship as specifically provided by such amendment.
