Green Card for Widow/Widower of U.S. Citizen

Jul 29, 2015 | Widow

Let’s say that you are not a United States Citizen, but are married to one. If your United States Citizen spouse dies, what happens to your immigration status. As a Miami immigration lawyer, I am happy to chat more about in the Frequently Asked Questions below:

I am the widow/widower of a U.S. Citizen – can I apply for a Green Card?
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, you 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. If you have any questions as to whether you qualify for green card as the widow/widower for a US Citizen, you may want to speak with a Miami immigration lawyer.

I am a widower/widow, and I have a pending/approved Petition. What are my options?
If you were married to a U.S. citizen who had filed Form I-130, Petition for Alien Relative for you before he or she died, you do not need to file anything.  The Form I-130 will be automatically converted to a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.  If you have children (unmarried and under age 21), they may be included on the Form I-360 regardless of whether your deceased spouse had filed a petition for them.

To qualify, you must not have 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. Again, if you have any questions about your eligibility, it is best to speak with a Miami immigration lawyer.

I am a widow/widower of a US Citizen, but I do not have a pending/approved petition. What are my options?
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 self-petition as an “immediate relative” on Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

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 yout 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. If you have any questions as to the above, you may want to speak with a Miami immigration lawyer.

I am the surviving spouse of a U.S. Military Member. What are my options?
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. Again, if you have any concerns, you may want to speak with a Miami immigration lawyer.

Eligibility Criteria
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 a 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

If You Live in the United States
Your Miami immigration lawyer may file Form I-485, Application to Register Permanent Residence or Adjust Status, either at the same time you file your Form I-360 or after you file the Form I-360 whether it is pending or approved.  If you already filed Form I-485 based on the petition filed by your spouse, USCIS will continue to process this application and you do not need to file another one.

If You Live Outside of the United States
Your Miami immigration lawyer will probably  forward your approved petition overseas to the U.S. embassy or consulate that has jurisdiction over where you live.

I am the widow/widower of a U.S. Citizen, and I have children. What are their options?
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.

If you would like more information on green cards for widows or widowers, please contact Miami immigration lawyer The Law Office of Tatiane M. Silva, P.A., Esq. at (305) 895-2500 or visit our website at tmsilvalaw.com.