On October 28, 2009, the President signed into law a bill eliminating the “widow penalty” and allowing many survivors of “qualifying relatives” to apply for permanent residency. Important rules, time limits, and qualifications apply.

Eliminating the “Death” Penalty
The law now permits an eligible surviving relative to file for permanent residency in the United States, if they are the beneficiary of certain applications and their sponsoring relative has died before the green card was issued. These cases fall into two separate categories, the “widow” cases and the “other survivor” cases.

Widow Cases
The law now permits eligible widows or widowers of U.S. citizens to qualify for permanent resident status (“green cards”) regardless of how long the couple was married. The new law removes the “widow penalty” that required the widow(er) be married at least two years to the U.S. spouse in order to qualify as a “widow” and thereby “self-petition” for permanent residency (“green card”.) Under the revised law, foreign nationals who were married to U.S. citizens who died at any time after the marriage can file for permanent residency by filing form I-360 before October 28, 2011or within 2 years of the spouse’s death, whichever is later.

If the widow is living in the U.S. he or she may be eligible to file for permanent residency immediately by filing application form I-485 simultaneously with the filing of the I-360. Applicants living abroad can file the I-360 with USCIS, have the approved application forwarded to the U.S. consulate in their home country, and apply at the consulate for an immigrant visa.

When the widow(er) qualifies as an “immediate relative” than the widows unmarried minor children will also qualify for the same status.

As of October 28, 2009, any pending Form I-130 that was filed on a widow(er)’s behalf prior to the citizen spouse’s death will automatically convert to a widow(er)’s Form I-360, so long as, on the date of the citizen spouse’s death, they qualified as an immediate relative. 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(er) will also be eligible to seek an immigrant visa or adjustment of status based on the approved Form I-360.

If the widow(er) entered the United States as a K-1/ fiancée nonimmigrant and filed an I-485 application for permanent residence after marrying the deceased U.S. citizen, he or she will be deemed the beneficiary of a Form I-360 Widow(er) petition. If a widow(er) with an approved Form I-130 and a pending Form I-485 left the United States voluntarily after his or her petitioning U.S. citizen spouse died, and thus “abandoned” his or her adjustment application, the approved Form I-130 is converted to an approved Form I-360, so that the widow(er) may apply for an immigrant visa abroad.

The law does not require that a petition have ever been filed by the U.S. citizen spouse nor does the law require any U.S. residence before or after the death. As a result, widows living abroad who have not remarried and have never been to the U.S. or previously filed applications with USCIS or the consulate, can now apply for permanent residency.

General Survivors’ Rights
The new law also permits individuals to apply for permanent residency if petitions were filed prior to the death of the petitioner or principal immigrant if the beneficiary or derivative beneficiary resided tin the U.S. at the time of the death sponsor’s death and the individuals continues to reside in the U.S. Thus, if you are the child of an individual who filed or was the primary beneficiary of a family based or employment based petition, the law may allow you to file for permanent residency. The law includes you if you are:

• Immediate relatives
• Family Based Preference Beneficiaries
• Employment based dependents
• Refugees and Asylees
• Nonimmigrants in T or U status.

Frequently Asked Questions (FAQs)

Widow(er) Cases:

If my U.S. citizen spouse has died, and I do not have a petition pending with USCIS, how do I obtain status as a widow(er)?

If I have a pending I-130 and qualify as an immediate relative, how do I find out if my petition has converted to a widow(er)’s I-360?

If I Qualify As A Widow(er) Are There Other Requirements In Order To Get My Green Card?

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

I previously filed a Form I-360 to obtain deferred action as the widow(er) of a U.S. citizen who died prior to the second anniversary of our marriage. What happens to that Form I-360?

Does it make a difference whether my children had an I-130 filed on their behalf?

Are the stepchildren of my deceased U.S. citizen spouse covered under this new law?

Are my children, who are not the children of my deceased U.S. citizen spouse, covered under this program?

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?

What if my U.S. citizen spouse died and I remarried, am I still eligible to file for a green card under this program?

Does it make a difference whether my children had an I-130 filed on their behalf?

What if I was legally separated or divorced from my U.S. citizen spouse at the time of his or her death?

I am widow(er) who had a Form I-130 pending on October 28, 2009 but I entered the United States without lawful admission or parole. Can I qualify for adjustment of status?

What if I am a widow(er) who was removed or departed from the United States while an order of removal was pending?

General Survivors’ Rights (Non-widow Survivors):

Who is included in these petitions?

Can I still qualify if I ever left the U.S.?

Answers

Q. If my U.S. citizen spouse has died, and I do not have a petition pending with USCIS, how do I obtain status as a widow(er)?

A. If your U.S. citizen spouse died on or after October 28, 2009, you will have two years from the date of the citizen spouse’s death to file a Form I-360 petition. If your U.S. citizen spouse died before October 28, 2009, and you did not have a Form I-130 pending on October 28, 2009, you have until October 28, 2011, to file a Form I-360.

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Q. If I have a pending I-130 and qualify as an immediate relative, how do I find out if my petition has converted to a widow(er)’s I-360?

A. Your Form I-130 will automatically convert to a widow(er)’s Form I-360. USCIS will adjudicate your converted I-360 and notify you with a decision. If your case has been the subject of litigation in any Federal court on the issue of the effect of the petitioner’s death on your Form I-130, you will receive notification from USCIS that the Form I-130 has been reopened.

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Q. If I Qualify As A Widow(er) Are There Other Requirements In Order To Get My Green Card?

A. Yes. The widow(er) must still establish that: He or she was the citizen’s legal spouse. The marriage was bona fide and not an arrangement solely to confer immigration benefits to the beneficiary. He or she has not remarried. He or she is admissible as an immigrant. In an adjustment of status case, that he or she meets all other adjustment eligibility requirements and merits a favorable exercise of discretion.

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

A. No. Under the INA, a widow(er) of a citizen and his or her accompanying children are not required to submit Form I-864, Affidavit of Support. However, you will need an affidavit of support from a substitute sponsor if you are applying as a “non-widow surviving beneficiary”. (see below)

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Q. I previously filed a Form I-360 to obtain deferred action as the widow(er) of a U.S. citizen who died prior to the second anniversary of our marriage. What happens to that Form I-360?

A. If you were already granted deferred action, and received an employment authorization document on that basis, USCIS will not terminate your deferred action or your EAD. Now that Congress has enacted the ameliorative legislation, however, any Form I-360 that was filed to obtain deferred action and has not yet been adjudicated as a deferred action request will now be considered to be an I-360 widow(er)s petition. If your prior I-360 was already approved as á deferred action request, USCIS will, on its own motion, reopen your Form I-360 and adjudicate it as an I-360 widow(er) petition. It will not be necessary for you to file a formal motion or to pay a new Form I-360 filing fee.

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Q. Does it make a difference whether my children had an I-130 filed on their behalf?

A. A child who was listed on your Form I-130 can be included on your converted I-360, regardless of whether your child was the beneficiary of his or her own Form I-130.

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Q. Are the stepchildren of my deceased U.S. citizen spouse covered under this new law?

A. Generally, your stepchildren through marriage to the U.S. citizen would be considered your children, and thus covered, as long as your marriage took place when the child was younger than age 18. They may be eligible or immediate relative status under the INA.

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Q. Are my children, who are not the children of my deceased U.S. citizen spouse, covered under this program?

A. 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.

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Q. 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. No. Those who obtain permanent residence based on being the widow(er) of a citizen are not subject to conditional permanent residence and will not have to file Form I-751.

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Q. What if my U.S. citizen spouse died and I remarried, am I still eligible to file for a green card under this program?

A. No. If you remarried after the death of your previous U.S. citizen spouse, you are ineligible for this program based on that marriage, although you may still qualify for immigration benefits on some other basis such as re-marriage to á U.S. citizen. BUT you may nevertheless qualify as a “non-widow surviving beneficiary.” (See below)

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Q. Does it make a difference whether my children had an I-130 filed on their behalf?

A. A child who was listed on your Form I-130 can be included on your converted I-360, regardless of whether your child was the beneficiary of his or her own Form I-130.

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Q. What if I was legally separated or divorced from my U.S. citizen spouse at the time of his or her death?

A. 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. I am widow(er) who had a Form I-130 pending on October 28, 2009 but I entered the United States without lawful admission or parole. Can I qualify for adjustment of status?

A. Your spouse’s Form I-130 will still be converted to a Form I-360 and can be approved if you now qualify as a widow(er). But an alien who is present in the United States without having been admitted or paroled generally cannot qualify for adjustment of status. It, therefore, may be necessary for you to leave the United States and apply for an immigrant visa at a U.S. consulate overseas. Your attorney or accredited representative is in the best position to advise you about your specific case.

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Q. What if I am a widow(er) who was removed or departed from the United States while an order of removal was pending?

A. If the widow(er) is outside of the United States and had been ordered removed, USCIS has discretion under the INA to consent to the widow(er)’s reapplication for admission. USCIS will generally exercise discretion favorably and grant an application for consent to reapply when:

• The Form I-130 that had been filed by the widow(er)’s spouse has now been approved as a Form I-360,
• The widow(er) is otherwise admissible, and The widow(er)’s case does not present significant adverse factors beyond the removal itself, such as a criminal record, national security concerns, or immigration fraud that has not been the subject of a waiver of inadmissibility.

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General Survivors’ Rights (Non-widow Survivors):

Q. Who is included in these petitions?

A. Any of the qualifying beneficiaries set out above can apply. For example, if your grandmother was a permanent resident and filed a Family Based Second Preference for your mother as the unmarried child of a U.S. citizen you may qualify for permanent residency if either your grandmother or your mother died. The same is true if your parent or spouse was the beneficiary of an Employment Based application and that spouse or parent died. It does, however, require that the I-130 or I-140 petition have been filed prior to the death and that you resided in the U.S. at the time of his or her death and you continue to reside in the U.S.

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Q. Can I still qualify if I ever left the U.S.?

A. Yes. The law requires residence not continuous physical presence. This means that brief and casual trips outside the U.S. would not disqualify you under the law.