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Immigration: Old 'Widow's Penalty' Law and New Laws for Widowers

A widow or widower of a United States citizen can obtain their permanent resident’s card, also known as a green card.

If you were lawfully married to an American spouse who later died, you can still apply for a green card. The United States Citizenship and Immigration Service (USCIS) is an important entity to know about and Immigration Nationality Act (INA) is an important law to understand when going through this process.

History of the ‘Widow’s Penalty’

Before October 28, 2009, it was required to be married for more than two years before a spouse passed away if you wanted to apply for a green card. This was an effort to prevent people participating in sham marriages from getting green cards. In the past, a non-citizen could marry a U.S. citizen to quickly gain legal residency and then just as quickly get a divorce.

Congress removed the two-year requirement for these cases, which was called the “widow’s penalty” or “widow penalty.” Before this modification, foreign spouses in this situation ran the risk of deportation.

The common belief was that this rule was unfair and unjustly penalized the remaining spouse. No matter when your spouse died, you can continue with the process of permanent residence. It does not affect the application whether you were living in or outside the U.S. at the time of your spouse’s death.

However, you should check the following requirements:

  • You were lawfully married to a U.S. citizen
  • The marital relationship was made in good faith
  • You did not marry for immigration benefits
  • There are no inadmissibility criteria against you or your spouse

What To Do if the Widow or Widower Had a Petition for a Foreign Relative In Progress?

If your U.S. citizen spouse dies while your alien relative petition (Form I-130) had already been filed with the USCIS, then you should not do any additional paperwork.

In these cases, Form I-130 will be converted to Form I-360 or Petition for Amerasian, Widow(er), or Special Immigrant. Unmarried children and children under the age of 21 will also be included in the petition.

To complete this process, you must not have been divorced or separated from your deceased spouse. Also, as soon as you marry someone else, you no longer qualify for this benefit.

What To Do if the Widow(er) Had Not Filed a Petition for a Foreign Relative?

If you have not had a foreign relative application (Form I-130) filed, then you can file for this yourself. For this, Form I-360 is also used.

Similarly, to qualify, you should not have been divorced or separated from your United States citizen spouse, and unmarried children under 21 years of age will also get the immigration benefit.

It is important to know that you have a period of two years, counted from the death of your spouse, to fill out Form I-360 and submit your I-130 petition.

What if the Applicant Lives Outside or Within the United States?

If you live outside of the United States, your approved petition will be sent to the U.S. consulate or embassy of the country where you are living. The case will follow the regular steps of a foreign relative petition and be assigned to an immigration officer.

If you live in the United States, you can file your petition and adjustment of status to permanent resident at the same time (Form I-485).

What Happens After I Submit the Petition as a Widower of a U.S. Citizen?

If you meet the requirements and qualification criteria, you will receive:

  • A notice or notification of receipt
  • A letter for fingerprint capture or biometric services (in some cases)
  • Notification to attend your interview (in some cases)
  • Letter with the final decision

Do I Need a Lawyer to Process My Permanent Residence in These Cases?

Coping with the death of a loved one and dealing with immigration procedures at the same time can be overwhelming for many people.

In these cases, the help of an immigration lawyer can be very positive. But if you feel like you can do it yourself, you should know that you do not have to hire an attorney.

Bear in mind that you are not necessarily going to lose your ability to immigrate to the United States because you have become a widow or widower.

Your immigration process can continue its course. But, depending on your case, there may be evidence to send, as well as deadlines and procedures to comply with. An immigration attorney can advise you if you need help.

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