A U.S. citizen may file a Form I-130 immigrant petition for his or her spouse in the immediate relatives category. If the citizen dies, the widow(er) may still seek permanent residence in the United States under section 201(b)(2)(A)(i) of the Immigration & Nationality Act, when certain conditions are met.
Who Qualifies for Widow(er) Benefits Under INA 201(b)(2)(A)(i)?
U.S. immigration statute permits widow(er)s of U.S. citizens to be classified as immediate relatives and continue the Immigrant Visa or Adjustment to Permanent Resident Status application process if they:
- Were legally married to a U.S. citizen and not divorced or legally separated from the U.S. citizen at the time of death
- File a Form I-360 self-petition within two years of the U.S. citizen spouse’s death or have a pending or approved Form I-130 filed by the U.S. citizen spouse prior to death, which will be automatically converted to a Form I-360 petition
- Show they entered into the marriage in good faith and not solely for immigration benefits
- Are admissible to the United States
- Are not remarried before they receive the green card or immigrant visa (NOTE: If there is a remarriage, the applicant may still be able able to pursue section 204(l) relief if he or she was residing in the United States when the petitioner died and continues to reside in the United States).
How to Apply for Widow(er) Benefits
If there is a pending or approved Form I-130 petition, the widow(er) must notify USCIS of the U.S. citizen’s death. The agency will then automatically convert the I-130 to an I-360 self-petition. If there is no pending or approved I-130 at the time of death, the widow(er) must submit the Form I-360 self-petition to USCIS within two years of the U.S. citizen’s death.
Widow(er)s in the United States may file a Form I-485, application to adjustment to permanent resident status, either at the same time the I-360 is filed or after the I-360 is filed, whether it is pending or approved. If an I-485 application was already submitted based on a pending or approved I-130 filed by the deceased spouse, there is no need to file a new one.
A widow(er) who is living abroad may go through the I-360 approval or I-130/I-360 conversion process to apply for an immigrant visa at the U.S. Consulate overseas.
Admissibility Requirement
A Form I-864, Affidavit of Support, is not required for widow(er)s to establish they will not become a public charge under INA § 212(a)(4). The applicant instead claims an exemption from filing the Affidavit of Support with the Immigrant Visa request or Adjustment of Status application.
Widow(ers) are not exempt from the 3/10 year bars to re-entry under INA 212(a)(9)(B)(i) if they accrue more than 180 days of unlawful presence in the U.S. and depart for consular processing of the immigrant visa. The waiver for unlawful presence requires a U.S. citizen or permanent resident spouse or parent, which many widow(ers) do not have. When possible, widow(er)s should apply for Adjustment of Status within the U.S. and avoid triggering the 3/10 year bar by departing the U.S.
If there are no significant negative factors, and a previously filed I-130 has been converted and approved as an I-360, USCIS will normally exercise discretion favorably in a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, of a widow(er) who is inadmissible due a prior removal order.
Children of Widow(er) of U.S. Citizen
Unmarried children under the age of 21 may be included in the immigrant petition as derivative beneficiaries. As “immediate relatives,” derivative children qualify for benefits under the Child Status Protection Act (CSPA), which “freezes” their ages as of the filing date of the Form I-130 or Form I-360, whichever is applicable. CSPA protects them from aging out if they turn age 21 prior to their being granted a green card or immigrant visa. Still, they must meet any other eligibility criteria or filing requirements.
Consult a Qualified U.S. Immigration Attorney
A qualified U.S. immigration attorney can help with verifying your eligibility for widow(er) benefits and submitting a request for I-130 to I-360 conversion or filing a properly documented I-360 self-petition. It’s also important to seek counsel in the Adjustment of Status application within the United States or in the Immigrant Visa request at the U.S. Consulate abroad.
For information on other possible remedies for surviving relatives, read our related articles:
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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
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U.S. federal regulations require the approval of a Form I-130, family-based immigrant petition to be revoked when the petitioner dies. This stops the immigration process if the beneficiary has yet to obtain permanent resident status on the date of the petitioner’s death. But an exception under 8 C.F.R 205.1(a)(3)(i)(C) allows USCIS to, as a matter of discretion, reinstate the approval if it determines that a revocation is inappropriate due to humanitarian reasons.
