Marriage, Divorce or Death While I-485 Is Pending

Why do family changes matter after Form I-485 is filed?

Marriage while Form I-485 is pending

A new marriage can affect adjustment in several ways.

It can:

• Create eligibility for a new Form I-130;
• Convert an unmarried family-preference classification;
• Destroy a category requiring the beneficiary to remain unmarried;
• Create a derivative spouse in a category permitting derivatives;
• Affect a child's derivative eligibility;
• Permit transfer of underlying basis in some cases; and
• Create conditional-residence consequences if the new marriage becomes the adjustment basis.

Transferring a pending I-485 to a new marriage-based petition

USCIS permits transfer of the underlying basis of a pending Form I-485 in qualifying circumstances.

For example, an applicant with a pending employment-based adjustment may later marry a U.S. citizen and seek to transfer the existing Form I-485 to a new family-based petition.

USCIS examines:

• Continuing pendency of Form I-485;
• Continuing eligibility under the existing basis until the transfer request;
• Properly filed replacement petition;
• Whether the new category permits concurrent filing if the petition is still pending;
• Visa availability;
• Admissibility;
• INA §245 bars applicable under the new category; and
• Discretion.

See Transfer of Underlying Basis / Interfiling.

A break in eligibility can prevent transfer

USCIS requires continuity of adjustment eligibility before a transfer request is made.

USCIS's Policy Manual gives the example of an applicant whose LPR-spouse petition ended through divorce before the applicant married a U.S. citizen and requested transfer. Because eligibility under the original basis had already ended, a new Form I-485 was required.

Divorce in a marriage-based adjustment case

In an ordinary adjustment case based on marriage to the petitioner, divorce before approval generally ends the qualifying spousal relationship.

Potential consequences include:

• Automatic revocation of the petition under applicable rules;
• Loss of immediate-relative classification;
• Loss of family-preference classification based on that marriage;
• Inability to approve Form I-485 on the former marriage basis; and
• Need to identify another adjustment basis if one exists.

K-1 adjustment after divorce

K-1 adjustment has specialized rules.

Under Matter of Sesay, a K-1 entrant who timely married the U.S. citizen petitioner can potentially remain eligible to adjust under INA §245(d) even if the marriage later ends before USCIS adjudicates Form I-485, provided the statutory requirements are otherwise satisfied.

See K-1 Fiancé(e) Adjustment of Status.

Divorce and derivative spouses

A derivative spouse generally must remain the principal applicant's spouse through the time derivative permanent residence is granted.

Divorce before approval can therefore terminate derivative eligibility.

This can affect derivative spouses in:

• Employment-based categories;
• Family-preference categories;
• Special immigrant categories permitting derivatives;
• Diversity Visa cases; and
• Other categories relying on continuing spousal relationship.

Marriage can affect derivative children

Many derivative-child classifications require the beneficiary to remain unmarried.

A child's marriage can therefore terminate eligibility even where age remains protected under the Child Status Protection Act.

Before marriage, a derivative should review:

• Exact immigrant category;
• Age;
• CSPA status;
• Requirement to remain unmarried;
• Whether the principal has adjusted; and
• Whether another family category would arise.

Death of a U.S. citizen spouse

The death of a U.S. citizen spouse does not automatically end every pending marriage-based adjustment case.

A surviving spouse may qualify as an immediate relative widow or widower under INA §201(b)(2)(A)(i), subject to the statutory requirements.

Important issues include:

• Valid marriage at the time of death;
• U.S. citizenship of the deceased spouse;
• Whether the surviving spouse has remarried;
• Pending or approved Form I-130;
• Widow or widower immigrant classification;
• Pending Form I-485;
• Admissibility; and
• Financial-sponsorship rules.

INA §204(l)

INA §204(l) can permit approval of certain immigrant petitions and related applications despite the death of a qualifying relative.

A qualifying beneficiary generally must have:

• Resided in the United States when the qualifying relative died; and
• Continued to reside in the United States when USCIS decides the surviving-relative request.

The provision can cover specified:

• Immediate-relative beneficiaries;
• Family-preference principal beneficiaries;
• Family-preference derivatives;
• Employment-based derivatives;
• Refugee and asylee relatives;
• T and U derivatives; and
• Other beneficiaries specifically included by statute.

Death does not waive every other eligibility requirement

INA §204(l) removes the death-related obstacle in qualifying cases.

It does not automatically waive:

• Inadmissibility;
• INA §245 bars;
• Marriage fraud;
• Criminal grounds;
• Fraud or misrepresentation;
• Visa availability;
• Required waivers;
• Public charge where applicable; or
• Other independent statutory requirements.

The applicant must still establish the remaining requirements for adjustment.

Substitute sponsor after petitioner death

Death of a Form I-864 sponsor can create a financial-sponsorship problem.

Where the immigration law permits the case to continue, a qualifying substitute sponsor may be able to execute Form I-864.

Potential substitute sponsors are limited by statute and generally must have a specified family relationship to the intending immigrant.

See Form I-864 Affidavit of Support and Form I-864 Exemptions.

Humanitarian reinstatement

An approved family-based immigrant petition that would otherwise be automatically revoked because of the petitioner's death may sometimes be reinstated for humanitarian reasons under 8 C.F.R. §205.1(a)(3)(i)(C).

Humanitarian reinstatement generally applies to:

• An already approved Form I-130;
• Death of the petitioner;
• A discretionary request to USCIS; and
• A case with sufficient humanitarian factors.

Death of the principal beneficiary

Death of a principal beneficiary can affect derivative applicants.

In qualifying cases, INA §204(l) can preserve benefits for surviving derivatives who satisfy the statutory residence requirements.

Questions include:

• Was the derivative residing in the United States when the principal died?
• Does the derivative continue to reside in the United States?
• Does §204(l) cover the immigrant classification?
• Was the petition pending or approved?
• Is a visa available?
• Does the derivative remain otherwise admissible?

Notify USCIS of marriage, divorce or death

Do not wait for USCIS to discover a material family change at interview.

Depending on the event, submit or bring:

• Marriage certificate;
• Divorce decree;
• Death certificate;
• New Form I-130 receipt or approval;
• Transfer-of-basis request;
• INA §204(l) request;
• Widow or widower evidence;
• Substitute Form I-864;
• Humanitarian reinstatement request; and
• Other evidence supporting continuing eligibility.

Example: divorce before transfer request

Example: U.S. citizen petitioner dies

Family-change checklist

• Identify exact current adjustment basis.
• Determine whether relationship must continue through approval.
• Obtain marriage certificate for new marriage.
• Obtain final divorce decree.
• Obtain death certificate.
• Determine whether petition was automatically revoked.
• Determine whether transfer of underlying basis remains possible.
• Determine whether widow or widower classification applies.
• Determine whether INA §204(l) applies.
• Determine whether humanitarian reinstatement applies.
• Determine whether substitute Form I-864 is needed.
• Review derivative spouse or child eligibility.
• Review visa availability.
• Notify USCIS accurately.
• Update interview evidence.

Common family-change mistakes

Primary authorities

Related INA245.com guides

Frequently asked questions