Can I get a Green Card if my United States Citizen spouse passed away?

Can I get a Green Card if my United States Citizen spouse passed away?

Widows or widowers who were married to U.S. citizens at the time of the citizen’s death may apply for a green card.

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 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 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 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 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 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

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.

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To find out more about our services and fees contact green card immigration attorney, Svetlana Prizant at 718.407.0871