Immigration TALK TM

May 06, 2012 News

Widow(er) of U.S. Citizen Eligible for Permanent Residency

By: Attorney Gail S. Seeram,

Prior immigration laws required a widow(er) of a U.S. citizen be married at least two years at the time of death of the U.S. citizen to be eligible to self-petition for lawful permanent resident status (or a green card). In other words, if an undocumented alien was married to a U.S. citizen and the U.S. citizen spouse died before your marriage lasted two years, then under prior law, the undocumented alien was not eligible to self-petition as a widow(er) to obtain a green card.
This prior law caused many widow(er)s of U.S. citizen to have their immigration petitions denied and to be placed in removal/deportation proceedings. Many practitioners didn’t see the purpose of the two-year marriage clause and this law was termed the “widow penalty”.
In October 28, 2009, under President Obama, the Department of Homeland Security Appropriations Act of 2010, P.L. 111-83, 123 Stat. 2145 removed the words “for at least 2 years” from INA §201(b)(2)(A)(i). The change in the law allowed the widow(er)s of U.S. citizens married for any length of time to self-petition for immediate relative status, but must still file within two years of the death of the U.S. citizen spouse. Additionally, if the U.S. citizen spouse filed a I-130 prior to the death, the I-130 is automatically converted to an I-360 upon the death of the petitioner. The requirement that the widow(er) not be remarried was not changed.
Requirements to Qualify as a “Widow(er):
The following requirements must be met for a widow(er) to self-petition for lawful permanent resident status (or green card) after the death of their U.S. citizen spouse:
1.   He or she was the citizen’s legal spouse;
2.   The marriage was bona fide and not an arrangement solely to confer immigration benefits to the beneficiary;
3.   He or she has not remarried;
4.   He or she is admissible as an immigrant; and
5.   In an adjustment of status case, that he or she meets all other adjustment eligibility requirements and merits a favourable exercise of discretion.
Children of Widow(er)s:
The child of a widow(er) whose self-petition is approved may be included in the widow(er)’s petition as long as they meet the definition for “child” under the immigration laws. Where the deceased citizen filed an alien relative petition for his or her spouse that was pending at the time of his or her death, and the alien relative petition can now be adjudicated as a widow(er)’s self-petition, the child(ren) of the widow(er) will be included in the widow(er)’s self petition.
An individual qualifies as the “child” of a widow(er) depending on his or her age when the alien relative petition was filed.
Q. Are my children, who are not the children of my deceased U.S. citizen spouse, covered under this new law?
A. Yes. Regardless of whether your children are also the children of your deceased U.S. citizen spouse, the programme covers your children in the United States, as long as they meet the definition of your “child” under the immigration laws.
Q. What if I was legally separated or divorced from my U.S. citizen spouse at the time of his or her death?
A. If you were divorced or legally separated from your U.S. citizen spouse at the time of his or her death, you are ineligible for this programme.
Q. What if I am a widow(er) who was removed or departed from the United States while an order of removal was pending?
A. If the widow(er) is outside of the United States and had been ordered removed, U.S. Citizenship & Immigration Services (USCIS) has discretion under the immigration laws to consent to the widow(er)’s reapplication for admission. USCIS will generally exercise discretion favourably and grant an application for consent to reapply for admission once all the requirements are met.
Q. What if I am in removal proceedings?
A. Your attorney or accredited representative is in the best position to advise you about your specific case.

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