Processing Applications of Widows and Widowers of Deceased US Citizens

In October 2009, the President signed a new law that allows eligible widows or widowers of U.S. citizens to qualify for permanent resident status regardless of how long the couple was married.   Repeat,regardless of how long the couple was married.

The new law benefits widows who were married to a U.S. citizen who is now deceased and who was a U.S. citizen at the time of death.   Also, this law requires that the widow was not legally separated from the your citizen spouse at the time of death and that the widow has not remarried.

The new law removes the two-year marriage requirement that was necessary for a widow to qualify for permanent resident status as an immediate relative of her late U.S. citizen spouse.   Also, when a widow qualifies as an immediate relative under the new law, her unmarried minor children will also qualify for the same status.  The law applies to widows living abroad, who are seeking immigrant visas, and to widows in the United States, who want to become permanent residents based on their marriage.  The only “Two Year” requirement in the new law is that if the deceased spouse did not file an I-130 petition before death, the widow must file the I-360 form and Green Card application with 2 years of the death of the citizen spouse.
 
The widow must show that she was the citizen’s legal spouse, that the marriage was genuine, not just for immigration purposes, and that she has not remarried.
 
Any pending Form I-130 that was filed on a widow’s behalf before the citizen spouse’s death will automatically convert to a widow’s Form I-360 Petition.  In addition, any Form I-130 that has been pending with CIS before the petitioner’s death will be reconsidered according to the new law.  USCIS will notify the widow in writing that her Form I-130 has been reopened and processed as a Form I-360 Widow petition.
 
If the Form I-130 was approved before U.S. citizen petitioner’s death, it will automatically convert to an approved I-360. Unmarried minor children of the widow will also be eligible to apply for an immigrant visa or adjustment of status based on the approved Form I-360.  
 
The same applies to a widow’s I-485 application for Permanent Residence:  If the Green Card application was not yet approved by CIS because of the Petitioner’s death, USCIS will notify applicants in writing that their Form I-485 case has been reopened.  
 
If the widow entered the United States as a K-1 nonimmigrant and filed an I-485 after marrying the deceased U.S. citizen, she will be considered the beneficiary of an I-360 Widow petition.  
 
If a widow with an approved Form I-130 and a pending Form I-485 left the United States voluntarily after her petitioning U.S. citizen spouse died, and in that way “abandoned” his or her adjustment application, the approved Form I-130 is automatically converted to an approved Form I-360, so that the widow may apply for an immigrant visa abroad.
 
A widow whose citizen spouse died on or after October 28, 2009, will have two years from the date of the citizen spouse’s death to file their Form I-360.

Q.1.  Where do I file the Form I-360?

A.1. With a CIS lockbox facility, or, if outside the US, file in person at the American Citizen Swervices section of the US Consulate.

Q.2. As a widow(er) of a U.S. citizen, am I required to submit a Form I-864, Affidavit of Support?

A.2.  No.  A widow of a citizen and her accompanying children are not required to submit Form I-864, Affidavit of Support.

Q.3 If I become a permanent resident based on my marriage to my deceased spouse, will I have to submit Form I-751, Petition to Remove Conditions on Residence?

A.3. No.  The widow’s Green Card will be permanent, not just for 2 years

ROBERT  MULLINS  INTERNATIONAL  www.rmiodp.com   www.facebook.com/rmiodp
Immigration Support Services - Tham Van Di Tru