Green Card for Widow(er)

Green Card for a Widow(er) of a U.S. Citizen

Widows or widowers who were married to U.S. citizens at the time of the citizen’s death may apply for a green card. For further information, see sections 201(b)(2)(A)(i) and 204(a)(1)(A) of the Immigration Nationality Act (INA) and 8 CFR 204.2(i)(1)(iv) and 245.

Until October 28, 2009, you had to have been married to the deceased citizen for at least two years at the time of the deceased citizen’s death, in order to immigrate as the widow(er) of a citizen.  Congress removed this requirement, effective October 28, 2009.

To immigrate as the widow(er) of a citizen, you must prove that you were legally married to the citizen, and that you entered the marriage in good faith, and not solely to obtain an immigration benefit.

Widow(er) With Pending or Approved Immigrant Petition

If you were married to a U.S. citizen who had filed Form I-130, Petition for Alien Relative for you before he or she died, you do not need to file anything.  The Form I-130 will be automatically converted to a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.  If you have children (unmarried and under age 21), they may be included on the Form I-360 regardless of whether your deceased spouse had filed a petition for them.

To qualify, you must not have have been divorced or legally separated from the U.S. citizen at the time of death.  Your eligibility to immigrate as a widow(er) ends if you  have remarried.

Widow(er) Without a Pending or Approved Immigrant Petition

If you were married to U.S. citizen before the citizen’s death, but had no I-130 petition filed on your behalf, you can self-petition as an “immediate relative” on Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

To qualify, you must not have  been divorced or legally separated from the U.S. citizen at the time of death.  Your eligibility to immigrate as a widow(er) ends if yout have remarried. You must file within 2 years of the citizen’s death.

If your citizen spouse did not have a Form I-130 pending at the time of death, you must file the Form I-360 no more than 2 years after the death of your citizen spouse.

If, however, you were married less than 2 years, and your citizen spouse died before October 28, 2009, you must file your Form I-360 no later than October 28, 2011.

Widow(er) of a U.S. Military Member

For surviving spouses of deceased U.S. military members who were killed in combat, there are separate immigration benefits under section 1703 of Public Law 108-136.  Individuals in these categories may self-petition for “immediate relative” status on Form I-360.

Eligibility Criteria

You may be eligible to receive a green card through widow/widower status if you:

• Were married to a U.S. citizen at the time he or she passed away
• Either have a pending or approved Form I-130 or you have filed a Form
• I-360 within 2 years of your spouse’s death (or no later than October 28, 2011, if your citizen spouse died before October 28, 2009, and you were married less than 2 years).
• Are not remarried
• Were not divorced or legally separated from your spouse at the time he or she died
• Are able to prove that you were in a bona fide marital relationship until the  time of your spouse’s death
• Are admissible to the United States

Application Process

To obtain a green card, you need to file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with all required documents as listed in the form instructions. If your spouse filed Form I-130, Petition for Alien Relative, before his or her death, USCIS will consider the petition as if you had filed an I-360.

If You Live in the United States

You may file Form I-485, Application to Register Permanent Residence or Adjust Status, either at the same time you file your Form I-360 or after you file the Form I-360 whether it is pending or approved.  If you already filed Form I-485 based on the petition filed by your spouse, USCIS will continue to process this application and you do not need to file another one.

If You Live Outside of the United States

Your approved petition will be forwarded overseas to the U.S. embassy or consulate that has jurisdiction over where you live.

Supporting Evidence for the Form I-485

You should submit the following evidence/documentation with your application:

• Two passport-style photos
• Form G-325A, Biographic Information (if between the ages of 14 through 79)
• Copy of your birth certificate
• Copy of your passport page with nonimmigrant visa (if applicable)
• Copy of passport page with admission (entry) or parole stamp (if applicable)
• Form I-94, Arrival/Departure Record (if applicable)
• Form I-693, Report of Medical Examination and Vaccination Record
• Form I-130 receipt notice or approval letter (Form I-797), if applicable; or
• Form I-360 with all required documents, if filing at the same time (concurrently) with Form I-485
• If not filing concurrently, Form I-360 receipt notice or approval letter (Form I-797)

Medical Examination

You will need to undergo a medical exam to be eligible for adjustment as an immediate relative.

Children of Widow(er) of a U.S. Citizen

Your unmarried children under the age of 21 (known as “derivatives”) may be included on your immigration petition.

As “immediate relatives,” your derivative children are granted benefits of the Child Status Protection Act, which “freezes” their ages as of the date of the principal’s filing of Form I-130 or I-360, whichever is applicable. This provision prevents them from aging-out if they turn 21 prior to adjudication of their adjustment-of-status or visa application. They must, however, continue to meet any other additional filing requirements.

Work & Travel Authorization

Generally, when you have a pending Form I-485, it is possible for you to apply for authorization to work in the United States and to seek advance parole (advance permission to travel and be admitted to the United States upon your return).