Survivor Benefits Deadline Approaches for Some Widows and Widowers of U.S. Citizens

US CIS has just published a reminder about the approaching deadline for some eligible widows and widowers of U.S. citizens to file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, if they are applying for a permanent Green Card on the basis of their marriage to a deceased US Citizen.
 
In October 2009, Congress changed the law about immigration benefits for widows and widowers of U.S. citizens. The previous 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. That meant some widows had no chance to apply for a permanent Green Card if they had been married for less than two years when their citizen spouse died, or if the spouse died before filing a visa petition for the widow.
 
The new law eliminates this two-year requirement, allowing the surviving spouse to apply for lawful permanent residence even if married for less than two years before the spouse's death and regardless of whether the spouse had ever filed Form I-130, Petition for Alien Relative (I-130 petition).
 
The recent CIS announcement is for widows whose deceased US citizen spouse did not file an I-130 for them after their marriage. This could apply to widows living in the US or in Vietnam. Widows of U.S. citizens who died on or after October 28, 2009, but who were not already the subject of an I-130 petition on October 28, 2009, may file an I-360 petition within two years of the death of the U.S. citizen spouse.
 
If the death of the U.S. citizen spouse occurred before October 28, 2009, the foreign national widow must file an I-360 petition before October 28, 2011.
Widows of U.S. citizens whose deceased spouse previously filed an I-130 petition on their behalf now have their cases automatically converted to an I-360 petition, when USCIS is notified of the petitioner's death. And, under the new law, a widow of a citizen and her accompanying children are not required to submit Form I-864, Affidavit of Support. Finally, anyone who obtains permanent residence based on being the widow of a citizen will automatically get a permanent Green Card.
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 Q.1. Are my children, who are not the children of my deceased U.S. citizen spouse, covered under this program?
 A.1. Yes. Regardless of whether your children are also the children of your deceased U.S. citizen spouse, the program covers your children in the United States, as long as they meet the definition of your “child” in section 101(b) of the INA,.
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 Q.2. What if I was legally separated or divorced from my U.S. citizen spouse at the time of his or her death?
 A.2. If you were divorced or legally separated from your U.S. citizen spouse at the time of his or her death, you are ineligible for this program.
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 Q. 3. What about a widow who was removed or departed from the United States while an order of removal was pending?
 A. 3. If the widow is outside of the United States and had been ordered removed, USCIS will generally allow the widow to reapply for admission when the Form I-130 that had been filed by the widow’s spouse has been approved as a Form I-360.
 
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