My concern would be the future of the child. I'm sure the hubby would want the best for it and if missing the funeral may jeopardize such he wouldn't "roll over in his grave".
If she still wants to immigrate with the child then she should be sure she doesn't do something that may destroy her chances.
Does she want to immigrate?
Hopefully her parents in laws and family will help.
If the will they should contact a GOOD immigration lawyer ASAP.
Especially before she goes to the US.
Here's some more info. All of this is WAY above my knowledge of immigration and she should get her in laws involved ASAP.
Ray Bacon is the only person on this forum that "may" know what has to be done.http://www.cpvisa.co...instatement.pdf
As you can see there is a LOT to be done.
Good link, Jack, that actually clarifies things a lot:
Immigration law generally requires that the U.S. citizen or LPR initiate the petition for the intending immigrant. However, widows and widowers of U.S. citizens (and the children of widows and widowers) may file a self-petition if they were married for at least two years at the time of the citizen’s death and were not legally separated. See INA §§ 201(b)(2)(A)(i) and 204(a)(1)(A)(ii). The right to file a self-petition ends two years after the death of the U.S. citizen or when the surviving spouse remarries. INA § 201(b)(2)(A)(i). If the petitioner filed an I-130 for the spouse before dying, the petition will be treated as a properly filed self-petition, provided that they had been married for two years and were not legally separated before the death of the U.S. citizen spouse. Under new regulations at 8 C.F.R. §§ 204.2(i)(1)(iv) and 205.1(a)(3)(i)©(1). It also is noteworthy that derivative beneficiary status is accorded to the children of widows and widowers of U.S. citizens. See 8 C.F.R. § 204.2(b)(4).
The rest of the document is irrelevant here because we are talking about a case that is covered by the above in RED
. Humanitarian reinstatement is for cases where the marriage has been less then two years.
I agree that contacting the embassy or another authoritative source is a good idea; but I am pretty sure that there is not a problem with using the K-3. Because the K-3's purpose is to travel to the U.S. to await the processing of the IR-1. According to the above and the Adjucator's Field Manual as well as the law the I-130 automatically (I assume paperwork needs to be filed, however) converts to an I-360, see: http://www.uscis.gov...ash=0-0-0-10711
§ Sec. 205.1 Automatic revocation. (Section revised 3/26/96; 61 FR 13061 )http://www.uscis.gov...ash=0-0-0-10525
(a) Reasons for automatic revocation. The approval of a petition or self-petition made under section 204 of the Act and in accordance with part 204 of this chapter is revoked as of the date of approval:
(1) If the Secretary of State shall terminate the registration of the beneficiary pursuant to the provisions of section 203(e) of the Act before October 1, 1991, or section 203(g) of the Act on or after October 1, 1994;
(2) If the filing fee and associated service charge are not paid within 14 days of the notification to the remitter that his or her check or other financial instrument used to pay the filing fee has been returned as not payable; or
(3) If any of the following circumstances occur before the beneficiary's or self-petitioner's journey to the United States commences or, if the beneficiary or self-petitioner is an applicant for adjustment of status to that of a permanent resident, before the decision on his or her adjustment application becomes final:
(i) Immediate relative and family-sponsored petitions, other than Amerasian petitions.
(A) Upon written notice of withdrawal filed by the petitioner or self-petitioner with any officer of the Service who is authorized to grant or deny petitions.
(B) Upon the death of the beneficiary or the self-petitioner.
© Upon the death of the petitioner, unless: (Revised effective 7/21/06; 71 FR 35732 )
( 1 ) The petition is deemed under 8 CFR 204.2(i)(1)(iv) to have been approved as a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant under 8 CFR 204.2(b) ; or
(iv) A currently valid visa petition previously approved to classify the beneficiary as an immediate relative as the spouse of a United States citizen must be regarded, upon the death of the petitioner, as having been approved as a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant for classification under paragraph (b) of this section, if, on the date of the petitioner's death, the beneficiary satisfies the requirements of paragraph (b)(1) of this section. If the petitioner dies before the petition is approved, but, on the date of the petitioner's death, the beneficiary satisfies the requirements of paragraph (b)(1) of this section, then the petition shall be adjudicated as if it had been filed as a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant under paragraph (b) of this section. (Added effective 7/21/06; 71 FR 35732 )
The final rule also adopts a special rule for cases in which the alien beneficiary was, before the petitioner's death, the spouse of a citizen. Under section 201(b)(2)(A)(i) of the Act, if an alien was married to a citizen for at least 2 years at the time of the citizen's death, the alien may file a petition on his or her own behalf, so long as the alien does so within 2 years of the citizen's death, and has not remarried. Section 212(a)(4)©(i)(I) of the Act, in turn, relieves that alien of the affidavit of support requirement, once USCIS approves the new petition. The final rule provides that it will not be necessary for the beneficiary to file a new petition (Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant) as the widow(er) of a citizen. Instead, the final rule provides for automatic conversion of the citizen's spousal Form I-130, Petition for Alien Relative, to a widow(er)'s petition upon the citizen's death if, on that date, the widow(er) meets the requirements of section 201(b)(2)(A )(I) of the Act as it relates to widow(er)'s petitions. This automatic conversion will apply whether the citizen spouse dies before or after approval of the Form I-130. Since the alien spouse will then immigrate as the widow(er) of a citizen, it will not be necessary to submit a Form I-864 from a substitute sponsor.
It is still the same 'case' so the k-3 should be valid to await the processing of the case.
What is also interesting about the I-360 conversion is that it appears that children are given derivitive benefits so seperate I-130s for the children should not be needed with the adjustment of status submission.
Again, she should probably contact the embassy to confirm that she is okay. She will be able to immigrate either way, it is just a question of whether she would have problem at the point-of-entry with the K-3. I don't think she would, but sometimes when a person is in a 'fuzzy area' of the visa laws it can very much depend what type of immigration/customs officer you get at the point-of-entry.