Question:
“My U.S. citizen husband passed away a few months ago. He kept saying he would help me get my immigration papers. But he never filed anything. Do I have any hope to getting a green card based on our 20-year marriage?”
(Submitted by Regina T., Fallbrook, CA)
Answer:
You may still be eligible for permanent residency, even though you are a widow. This is an area of immigration law known as surviving spouse green card rights.
In short, your question asks, “Can I Still Become A Lawful Resident After My Sponsoring Spouse Dies?”
Because your husband was a United States citizen, I will focus my discussion on what is often referred to as a Immigrant Widow Petition.
But since your case may present some issues which you did not mention in your question, I will briefly touch on two other related topics, Surviving Spouse Rules Under INA Section 204(l) and Humanitarian Reinstatement.
5 Things Immigrants Should Know About Widow(er) Petitions
Before you move forward, here are requirements you need to know.
- Was your spouse a U.S. citizen on the date of his death?
- Was an I-130 Immigrant Relative Petition filed by your husband?
- Were you and your husband still married at the time of his death?
- How long ago did the death occur?
- Have you remarried?
First, Was Your Spouse A U.S. Citizen On The Date Of His Death?
In order to seek benefits under a Widow(er) Petition, you need to show that your spouse was a U.S. citizen.
It is not necessary to prove he was a citizen throughout the entire period of your 20-year marriage. You must prove his citizenship status on the date of his death.
Second, Was An I-130 Immigrant Relative Petition Filed By Your Husband?
You wrote that your husband never filed your permanent residence application. I am not sure what you mean.
I’m not sure what paperwork he filed, if any. What he filed or did not file will affect what applications you will need to file to preserve your rights as a immigrant widow.
Generally speaking, there are two sets of paperwork: the initial petition to prove you have a valid marriage and the subsequent application to adjust your status to permanent resident.
- The initial petition is called an I-130 petition.
- The application for a family-based green card is called an I-485 application.
They are different. So let’s look at your situation one step at a time.
I-130 Petition Was Filed By Your Husband
Since I cannot tell from your question if your deceased husband filed any paperwork, I’ll start with the first set of paperwork. I will address two distinct possibilities.
As I noted above, the initial petition in this type of case is an I-130 petition. It is also known as an immigrant relative petition.
You need to know at what stage your petition was left at the time of your husband’s death.
On your behalf, was an I-130 prepared but not filed, filed but not approved, or approved?
In short, you first need to figure out if a I-130 marriage-based green card petition was properly submitted by your husband.
If he filed the I-130 petition, maybe it was already approved by the government – but maybe he was still waiting for it to be approved. Maybe a decision is still pending.
Whether the I-130 was approved or is still pending, USCIS will convert the I-130 immigrant relative petition to an I-360 self-petition for a widow automatically.
You remain classified as an immediate relative, the spouse of a U.S. citizen. This means you can proceed by filing the I-485 adjustment of status application. This application leads to your interview for a green card.
I-130 Petition Was Not Filed By Your Husband
If your U.S. citizen spouse never filed the I-130 petition, you will need to file the I-360 self-petition on your own, with supporting evidence to prove your marriage, the citizenship of your spouse, and his death.
(Don’t worry about remembering the petition names and application numbers. The “I” stands for “Immigration Form”. The number stands for the number of the application form, so you can know which form to use.)
Third, Were You And Your Husband Still Married At The Time Of His Death?
If you were divorced or legally separated before he passed away, you are not eligible for a green card as a widow.
Legal separation is different from merely living apart. Legal separation, like a divorce, is a formal legal status, usually with court-ordered child custody, spousal support, and property division provisions.
Living apart, without the other factors, is a physical separation, not a legal separation.
A physical separation, alone, will not kill your rights to seek permanent residence as a surviving spouse under a widow petition.
Fourth, How Long Ago Did The Death Occur?
Do not delay. There is a time limit for filing of two years after your husband’s death. Since you said your husband passed away a few months ago, it seems you have enough time to move forward.
Fifth, Have You Remarried?
The rules for permanent residence via a widow petition require that you have not remarried before you obtain your green card status.
Surviving Spouses Under INA 204(l)
So are there any options if you remarry too soon?
It used to be that if you remarried, you could not become a green card holder under your deceased spouse’s petition.
However, under INA section 204(l), known as the Surviving Relatives Law, you may still be able to win permanent residence status.
Did Your Spouse File An I-130 Petition For You Before He Passed Away?
To qualify, you will need to be the beneficiary of an already filed I-130 petition, either pending or approved.
Thus, if a petition was not filed by your husband, you are out of luck.
If your case falls under INA 204(l), there is another requirement, discussed below, you need to know about.
Where Did You Live With Your Spouse? And Where Do You Live Now?
According to the Surviving Relatives Law regulations, you must have resided in the United States on the date your husband died as well as have continued to reside here since that time.
Residence should not be confused with physical presence. Residence means your “principal, actual dwelling place”.
As a result, if you were visiting a relative overseas, or traveling with friends or family members, when your spouse passed away, this would not affect your place of residence for immigration purposes.
Humanitarian Reinstatement
If you do not meet the residence requirements under INA 204(l), there is the possibility of requesting humanitarian reinstatement. Under this mechanism, you can ask USCIS to exercise its discretion to allow your application to proceed.
Utilization of this process is difficult to win.
In addition, only immigrants with approved petitions can apply for humanitarian reinstatement.
Can The Spouse Of A Permanent Resident Who Dies Qualify For A Green Card?
Here is an issue which confuses some immigrants.
In the past, if your spouse who filed a petition for you suddenly passed away was only a permanent resident, not a U.S. citizen, you could not qualify for green card benefits.
It no longer matters under INA 204(l), the Surviving Spouse regulations.
Be alert. Some immigration officers still make this mistake.
Previously, only spouses of U.S. citizens qualified to seek green card benefits via deceased husbands or wives.
Of course, you still have to meet various other requirements to qualify for survivor spouse immigration benefits. But the key point is this. Now you may be able to win permanent residency, using your deceased spouse’s petition, whether your husband was a U.S. citizen or lawful resident.
To be clear, note that spouses of permanent residents do not qualify under the Widow Petition rules. That law only applies to immigrant husbands and wives of U.S citizens.
Additional Issues To Consider
Before closing, let me add a few more things which might fit your situation.
Did you have any children during your marriage? If they are also immigrants, you can include them in your paperwork to become permanent residents. However, they need to be under 21 and unmarried on the date you file.
Did you enter the U.S. lawfully or without inspection? Maybe you arrived lawfully, but stayed here when you were supposed to return to your home country? Did you ever leave the U.S. after your first entry?
In short, your entry and exit history could cause problems in your efforts to become a green card holder. Be careful with these issues.
In any event, before you file any applications, I recommend you discuss the specifics of your situation with an attorney versed in family visas, immigrant petitions, and permanent residency rules.
If you have an ongoing case right now, and you have immediate case-specific questions, you may want to visit our Immigrant Relative Petitions And Family Visas Attorney Services page for more information.
Or you might want to schedule a 1-On-1 Personalized Strategy And Planning Session to discuss the ins and outs of your case in depth.
