Loosing a loved one is one of the most difficult situation that can affect an immigrant. Specially, if the her immigration status is at stake. However, there is hope! Widower have option in the U.S.
If an American spouse dies suddenly while an immigrant is applying for a marriage green card, there are provisions in the U.S. laws that protect them. Additionally, widowers are also protected if they consider applying for a marriage green card after their U.S. citizen spouse died. In this note, I will walk through some of the highlights of the process. However, if you want legal counsel to avoid mistake, delays and loosing money, feel free to contact G.A.M Law Office P.C. at +1 646 397 2396.
Under sections 201(b)(2)(A)(i) and 204(a)(1)(A) of the Immigration Nationality Act (INA) and 8 CFR 204.2(i)(1)(iv) and 245, widows or widowers who were married to U.S. citizens at the time of the citizen’s death may apply for a green card.
Can a U.S. Citizen’s Widow(er) Get a Marriage Green Card?
The first point that is important for to know is that the requisite that the widower be married for at least two years with the U.S. citizen deceased is nonexistent anymore. As a result of change made by the U.S. Congress, an immigrant married to a US citizen, whose marriage lasted less than two years can apply for a green card.
What is important to understand is that you are required to prove that, you were legally married to the U.S. citizen 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 Form I-130, Petition for Alien Relative for you before the death, you do not need to file anything. You will then need to file the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. Additionally, if you have children (unmarried and under age 21), they may be included in the widower petition regardless of whether your deceased spouse had filed a petition for them. However, keep in mind that some children may get the citizenship automatically if they have a U.S. parent, even if the parent died.
Additionally, it is also a requirement the widower and the U.S. Citizen be married at the time of the death, this means that to qualify, you must not have have been divorced or legally separated from the U.S. citizen at the time of death.
Finally, your eligibility 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 the I-130 petition filed on your behalf has not been approved yet, you can still file a self-petition as an “immediate relative” on the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
In this case, again, to qualify, you must not have been divorced or legally separated from the U.S. citizen at the time of death. Additionally, your eligibility to immigrate as a widow(er) ends if you have remarried. Finally, keep in mind that you must file within 2 years of the citizen’s death.
Application Process
To obtain a green card, you will need to file Form I-360, with all required documents as listed in the form instructions. Additionally, if You Live in the United States, you 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.
Regardless of which form you initially filed, you will next need to complete and submit Form I-485. In this case, USCIS will usually take between 14-28 months to process the petition and send a final decision letter notifying you of whether you have an approved petition.
You will be able to check the status of your green card application on USCIS’s website. To use the status tracker, you will have to enter your receipt number (found on the notice that USCIS sends after receiving your application).
Consular Processing
If You Live Outside of the United States, your approved petition will be forwarded overseas to the U.S. embassy or consulate that has jurisdiction over where you live. If your U.S. citizen spouse had already filed Form I-130 on your behalf before their death, U.S. immigration officials would convert your Form I-130 into a Form I-360 petition. If your spouse hadn’t already filed Form I-130, you’ll have to submit Form I-360.
If the petition is approved USCIS will send your application materials to the National Visa Center (NVC). The NVC will contact you to let you know what documentation or fees you must provide. You will then have to complete Form DS-260. This form can be challenging, do not submit until you are sure it has been completed properly.
After completing Form DS-260, the NVC will forward your case file to your local U.S. consulate or embassy. Your consulate or embassy will then contact you to schedule a biometrics appointment and an in-person interview.
At the interview, you will present your passport and original documents proving your eligible case for a green card at the interview. A consular officer will ask you questions about your application and then make a decision for your case. Most consular officers make their decisions within a week of the interview.
Once approved by the consular officer, you will receive a U.S. visa, permitting you to travel to the United States. You will also receive a sealed envelope with your case file. You must not open this envelope — a U.S. immigration officer will do so at an official port of entry (at the airport). After you have formally entered the country, USCIS will mail your green card to your U.S. address. The consular process typically takes about 17-24 months.
Supporting Evidence for the Form I-485
- You should submit the following evidence/documentation with your application:
- Two passport-style photos
- Form G-325A, Biographic Information (if between the ages of 14 through 79)
- Copy of your birth certificate
- Copy of your passport page with nonimmigrant visa (if applicable)
- Copy of passport page with admission (entry) or parole stamp (if applicable)
- Form I-94, Arrival/Departure Record (if applicable)
- Form I-693, Report of Medical Examination and Vaccination Record
- Form I-130 receipt notice or approval letter (Form I-797), if applicable; or
- Form I-360 with all required documents, if filing at the same time (concurrently) with Form I-485
- If not filing concurrently, Form I-360 receipt notice or approval letter (Form I-797)
If you want legal counsel to avoid mistake, delays and loosing money, feel free to contact G.A.M Law Office P.C. at +1 646 397 2396.
Medical Examination
To complete Form I-693, you will need to undergo a medical exam to be eligible for adjustment as an immediate relative. To locate a civil surgeon near you, see the “Find a Medical Doctor” link.
Children of Widow(er) of a U.S. Citizen
You green card petition as a widower may include also your unmarried children under the age of 21 (known as “derivatives”). As “immediate relatives,” your 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.
Work & Travel Authorization
Generally, when you have a pending Form I-485, it is possible for you to apply for authorization to work in the United States.
