Immigration Benefits for Surviving Spouses Of U.S Citizens?

Weddings are the most exciting moments in the lives of many. The exchange of these special words, “Till death do us apart,” conceals a lifetime commitment between spouses. For many individuals, the loss of a spouse may leave them devastated while facing difficult immigration dilemmas. What immigration benefits are available to Widow(er) of U.S citizens?

 

A widow(er) of a U.S. citizen,  may be eligible to apply for a green card if they were married to your U.S. spouse at the time of their death. Prior to October 28, 2009, the immigration law required a widow(er) to be married to the U.S. citizen spouse for two years before being eligible to seek survivor benefits in the event of the citizen spouse's death. This condition was removed by Congress and became effective on October 28, 2009.  The surviving spouse of a U.S. citizen may now be eligible to receive a green card if the following eligibility criteria are met:

  • 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 Oct. 28, 2011, if your citizen spouse died before Oct. 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, and  

  • Are admissible to the United States.

The surviving spouse of a U.S. citizen can self-petition as an immediate relative by filing Form I-360, petition for Amerasian, Widow(er), or Special Immigrant if Form I-130 was never filed for the widow(er) before the death of the U.S. citizen. The Form I-360 must be file within two (2) years of the death of the U.S. citizen spouse. If a U.S. citizen spouse filed Form I-130, Petition for Alien Relative, before his/her death, the widow(er) will not need to file any form. The Form I-130 originally filed by the U.S. citizen spouse will automatically be converted to Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. Children of the widow(er) who are unmarried and under the age of 21 may be included on the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant regardless if the deceased U.S. citizen spouse originally file a petition for them.

 

A Widow(er) qualifies to adjust their status to that of a Lawful Permanent Resident following the same process as if the US citizen spouse was still alive.  Widow(er) residing in the United States may file Form I-485, Application to Register Permanent Residence or Adjust Status, either when or after submitting Form I-360.

 

When completing Form I-485, a widow(er) will need to submit the following documentations:

  • Two passport-style photos

  • 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)

The surviving spouse of a U.S. citizen can apply for work authorization card and seek advance parole for travel purposes with a pending Form I-485. An approved petition for widow(er) living outside of the Unites States will be sent overseas to the appropriate U.S. embassy or consulate once the I-130 or the I-360 is approved by immigration. Furthermore, the surviving spouse of a U.S. citizen will also be required to undergo a medical examination for the adjustment as an immediate relative. The Widow(er) will also be subject to the public charge rules of inadmissibility.

 

For many, the unexpected loss of a spouse may leave them devastated while facing difficult immigration dilemmas. A widow(er) of a U.S. citizen, may be eligible to apply for a green card if married to your U.S. spouse at the time of their death.


Patricia Elizee is the managing partner of Elizee Law Firm. The firm is focused on immigration and family law cases. To contact Elizee Law Firm please call 305-371-8846 or visit www.elizeelawfirm.com. 1110 Brickell Avenue, Suite 315, Miami, Florida 33131.

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