Widow(er) and Death of Other Petitioners

Part 1: Green Card for a Widow(er) of a U.S. Citizen

Widows or widowers who were married to U.S. citizens at the time of the citizen’s death may apply for a green card. Until October 28, 2009, the foreign national had to have been married to the deceased citizen for at least two years at the time of the deceased citizen’s death, in order to immigrate as the widow(er) of a citizen. Congress removed this requirement, effective October 28, 2009. To immigrate as the widow(er) of a citizen, you must prove that you were legally married to the citizen, and that you entered the marriage in good faith, and not solely to obtain an immigration benefit.

Widow(er) With Pending or Approved Immigrant Petition

If you were married to a U.S. citizen who had filed an I-130 petition for you before their death, then you do not need to file anything. The I-130 petition will be automatically converted to an I-360 petition. If you have children (unmarried and under age 21), they may be included regardless of whether your deceased spouse had filed a petition for them. To qualify, you must not have been divorced or legally separated from the U.S. citizen at the time of death. Your eligibility to immigrate as a widow(er) ends if you have remarried.

Widow(er) Without a Pending or Approved Immigrant Petition

If you were married to U.S. citizen before the citizen’s death, but had no I-130 petition filed on your behalf, you can still self-petition as an “immediate relative”. To qualify, you must not have been divorced or legally separated from the U.S. citizen at the time of death. Your eligibility to immigrate as a widow(er) ends if you have remarried. You must file within 2 years of the citizen’s death.

If your citizen spouse did not have a Form I-130 pending at the time of death, you must file the Form I-360 no more than 2 years after the death of your citizen spouse. If, however, you were married less than 2 years, and your citizen spouse died before October 28, 2009, you must file your Form I-360 no later than October 28, 2011.

Widow(er) of a U.S. Military Member

For surviving spouses of deceased U.S. military members who were killed in combat, there are separate immigration benefits under section 1703 of Public Law 108-136. Individuals in these categories may self-petition for “immediate relative” status on Form I-360.

Eligibility

You may be eligible to receive a green card through widow/widower status if you:

  • Were married to a U.S. citizen at the time he or she passed away
  • Either have a pending or approved Form I-130 or you have filed Form I-360 within 2 years of your spouse’s death (or no later than October 28, 2011, if your citizen spouse died before October 28, 2009, and you were married less than 2 years).
  • Are not remarried
  • Were not divorced or legally separated from your spouse at the time he or she died
  • Are able to prove that you were in a bona fide marital relationship until the time of your spouse’s death
  • Are admissible to the United States

Children of Widow(er) of a U.S. Citizen

Your unmarried children under the age of 21 (known as “derivatives”) may be included on your immigration petition. As “immediate relatives,” your derivative children are granted benefits of the Child Status Protection Act, which “freezes” their ages as of the date of the principal’s filing of Form I-130 or I-360, whichever is applicable. This provision prevents them from aging-out if they turn 21 prior to adjudication of their adjustment-of-status or visa application. They must, however, continue to meet any other additional filing requirements.

Part 2: Other Survivors

The law adds a new section of law, Sec. 204(l), to the Immigration and Nationality Act. The new section allows petitions that were filed prior to the death to be adjudicated despite the death of the petitioner or the principal immigrant in cases where the beneficiary or derivative beneficiary resided in the United States at the time of the death and continues to reside in the United States. The law covers the following survivors:

  • Immediate relatives (spouse, parent, minor child of a U.S. citizen)
  • Family Preference relatives (unmarried son or daughter of a citizen, married son or daughter of a citizen, spouse or child of a permanent resident, brother or sister of a citizen)
  • Employment-based dependents (derivative beneficiaries)
  • Refugee/Asylee relative petition beneficiaries
  • Nonimmigrants in “T” (victims of trafficking) or “U” (victims of crime) status
  • Asylees

 Affidavit of Support

Unlike the self-petitioning widow(er)s, 204(l) requires an Affidavit of Support, Form I-864. The law amends INA 213A(f)(5) to provide for a substitute sponsor in the case of a petition that is being adjudicated under the new INA 204(l).

 Resided abroad at the time relative died

Only self-petitioning widow(er)s and their qualifying children (see PART ONE) are covered under the new law where the survivor resided abroad at the time of the qualifying relative’s death. If the petition was approved prior to the qualifying relative’s death, however, current “humanitarian reinstatement” provisions found at 8 C.F.R. 205.1(a)(3)(i)(C)(2) may allow continued validity of the previously-approved petition, followed by consular processing of an immigrant visa. This would be the case even where the beneficiary was residing abroad.

 Effect of remarrying

 While the self-petition provision in the new law specifically requires that the widow(er) not have remarried, the provision dealing with “Surviving Relative Consideration” does not. Specifically, if a widow(er) resided in the United States at the time of the death of the qualifying relative and continues to reside in the United States, he or she shall have a petition or application for adjustment of status and any related applications adjudicated notwithstanding the death of the qualifying relative as long as the widow(er) “was…the beneficiary of a pending or approved petition for classification as an immediate relative…immediately prior to the death of his or her qualifying relative.” The clear language of the statute requires only that the person was an immediate relative immediately prior to the death. In the case of a widow(er) who remarries, this requirement is met despite the remarriage, provided a petition was filed prior to the death.

For more information please visit: www.ssad.org