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

Widows of U.S. citizens can get lawful permanent resident status (green card). In the past, immigration law penalized non-citizen spouses when their citizen spouse died within two years of marriage. However, the so-called widow’s penalty is no longer current immigration policy.

If you were lawfully married to an American spouse who later died, you can still apply for a green card. U.S. immigration laws can change at any time. For legal advice about how you can get lawful status after marriage to a U.S. citizen, talk to an experienced immigration lawyer.

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 gain legal residency quickly and then get a divorce as quickly as possible.

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

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.

To make sure you qualify for permanent residency status, check the following eligibility requirements:

• You legally married a United States citizen
• The marriage was bona fide and entered in good faith
• You did not marry for immigration benefits
• There are no inadmissibility criteria against you

The U.S. Citizenship and Immigration Service (USCIS) is an important entity to be aware of. The Immigration Nationality Act (INA) is an important law to understand when going through this process.

What to Do if the Widow or Widower Had a Petition for an Immediate 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 Self-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 national relative application (Form I-130) filed on your behalf, you can file for yourself using a different form. For this, the Form I-360 immigration petition is also used.

Similarly, to qualify, you should not have been divorced or separated from your United States citizen petitioner 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 date of the citizen’s death, to fill out the Form I-360 petition. If your spouse already filed the Form I-130 Petition for Alien Relative, the two-year deadline does not apply.

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 spouse 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 change your immigration status 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 offer legal advice and help you get permanent residency.