SPOUSES of deceased United States (“U.S.”) citizens may apply for green cards, if they self-petition within 2 years of their spouse’s passing. The unmarried children under 21 years of age of the petitioner are also eligible for green cards as derivative beneficiaries.
To qualify for a green card as a widow(er) of a U.S. citizen, the petitioner must meet the following requirements:
• The widow(er) was married to a U.S. citizen at the time of the citizen’s death;
• The deceased spouse was a U.S. citizen at the time of death;
• The widow(er) and citizen spouse were not legally separated at the time of the citizen’s death;
• The widow(er) spouse has not remarried;
• The widow(er) filed the immigrant visa petition within 2 years from the date of the citizen spouse’s death; and
• The widow(er) and citizen spouse were in a bona fide marital relationship until the time of the spouse’s death.
Previously, the petitioner 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. This requirement was removed, effective October 28, 2009. There is no longer a minimum requirement on the length of marriage.
After the I-360 Petition for Amerasian, Widow(er), or Special Immigrant is approved, the petitioning widow(er) may apply for a visa at the United States Consulate or Embassy abroad. Alternatively, if the widow(er) is lawfully present in the U.S., he/she may apply to adjust status to a green card holder. The application for adjustment of status can be filed concurrently with the immigrant visa petition.
If the U.S. citizen spouse had already filed Form I-130, Petition for Alien Relative, on behalf of beneficiary spouse before his or her passing, the widow(er) does not need to file another petition. The Petition for Alien Relative (I-130) is automatically converted to a Petition for Widow(er) (I-360).
Additionally, spouses eligible for widow(er) status and their derivative children are exempted from the affidavit of support requirement, which would normally be necessary with a family-based green card petition.
Applying for a green card based on widow(er) status can be lengthy and frustrating without the help of experienced attorneys and staff. Our seasoned team can assist and guide you through the petition process.
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Eliot Krieger is a Partner at Sullivan, Krieger, Truong, Spagnola, and Klausner, LLP. He is a former Assistant United States Attorney with the United States Department of Justice. He has a Ph.D. from Johns Hopkins University and a J.D. from Harvard Law School.
Website: www.sullivankrieger.com
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