How Widows Or Widowers Of US Citizens Can Get A Green Card

by Emmanuel S. Tipon, Esq.

An alien spouse of a U.S. citizen can get a green card if such a spouse is petitioned by the citizen by filing a Form I-130 Petition for Alien Relative.

But what happens if the U.S. citizen dies before the Form I-130 is adjudicated?

There is a general rule that when the petitioner dies, the petition dies with such petitioner, subject to humanitarian reinstatement which is a farce because it is extremely difficult if not impossible to obtain.

Widow or widower with pending immigrant petition
However, in the case of the widow or widower of a U.S. citizen, whose U.S. citizen spouse had filed a Form I-130 Petition for Alien Relative before he died, the widow or widower should notify USCIS about such death.

The notification should be accompanied with the citizen’s death certificate and Form I-797C showing that Form I-130 was received by USCIS. USCIS will automatically convert the Form I-130 to a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

The couple’s children (unmarried and under 21 years of age) may be included on Form I-360, whether or not the deceased U.S. citizen had filed a petition for them.

The widow or widower must establish that she/he was not legally separated from the U.S. citizen spouse at the time of the U.S. citizen’s death. INA Section 201(b)(2)(A)(i).

Widow or widower without a pending immigrant petition
If the  U.S. citizen had not filed a Form I-130 for his/her alien spouse and the citizen dies, the widow or widower can self-petition as an “immediate relative”. INA Section 204(a)(1)(A)(ii).

Such widow or widower can file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

The widow or widower must be a bona fide spouse of a U.S. citizen within the past two years and the citizen died within the past two years. INA Section 204(a)(II)(aa)(CC).

If the widow or widower remarries before the Form I-360 is adjudicated, his or her right to pursue the self-petition is deemed terminated.

The widow or widower must be admissible to the United States.

The petitioner should include, among others, the following documents:
1) Declaration of the widow or widower describing the facts and circumstances of the marriage to establish that it was bona fide and not intended to circumvent the immigrant laws.

2) Certificate of Live Birth of the petitioner

3) Certificate of Marriage of the petitioner and her deceased U.S. citizen spouse.

4) Certificate of Live Birth of the spouse showing that he/she was born in the United States (if applicable).

5) Certificate of Naturalization of the U.S. citizen spouse (if applicable).

6) U.S. Passport of the U.S. citizen spouse.

7) Certificate of Death of the U.S. citizen spouse.

8) Report of Death of U.S. Citizen or U.S. Non-Citizen National Abroad of the U.S. citizen spouse, issued by U.S. Embassy that has jurisdiction over the place of death.

There is a filing fee which is $435 as of 09/27/2023. It is subject to change.

Widow or widower living outside United States
If the eligible widow or widower is living outside the United States, she/he can file Form I-360 from abroad with the USCIS address specified in the instructions on the form.

If approved, the petition will be sent to the National Visa Center which will forward it to the U.S. Embassy or Consulate with jurisdiction over the country where the widow or widower lives.

Widow or widower living in the United States
If the eligible widow or widower is living in the United States, she/he may file Form I-360 together with Form I-485, Application to Register Permanent Residence or Adjust Status.

In the event, that the U.S. citizen had filed a Form I-130 Petition for Alien Relative for his/her alien spouse before he died and the alien spouse had filed a Form I-485 based on the Form I-130, USCIS will continue to process the Form I-485. The widow or widower must notify USCIS of the death of the U.S. citizen spouse.

The supporting documents and filing fee for Form I-360 are listed above.

The supporting documents for Form I-485 include, among others,

1) Copy of Applicant’s Certificate of Live Birth.

2) Copy of the Applicant’s passport pages (biographic information, nonimmigrant visa, admission stamp, or parole stamp (if applicable).

3) Form I-94, Arrival/Departure Record (if applicable).

4) Form I-693, Report of Medical Examination and Vaccination Record

5) Form I-797 showing receipt or approval of Form I-130 (if applicable).

6) Two passport-style color photographs of Applicant.

The Applicant must establish that she/he is eligible to receive an immigrant visa and is admissible to the United States for permanent residence as shown in the Form I-485 and supporting documents.

CAUTION: The Forms, Instructions, Place of Filing, Fees, Supporting documents, and other requirements change often. The USCIS website, the law, and the regulations should be checked for current information.

RECOMMENDATION: If the widow or widower is in the United States and wishes to work, she/he can file Form I-765, Application for Employment Authorization.

The information provided in this article is for general information only. It is not legal advice. Publication of this information is not intended to create, and receipt by you or reading by you does not establish or constitute an attorney-client relationship.

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ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He graduated with a Bachelor of Laws degree from the University of the Philippines. He placed third in the 1955 bar examinations. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publisher and writes columns for newspapers. He wrote the case notes and annotations for the entire Immigration and Nationality Act published by The Lawyers Co-operative Publishing Co. and Bancroft-Whitney Co. (now Thomson Reuters). He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon.  They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m.  Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645.  E-Mail: attorneytipon@gmail.com  filamlaw@yahoo.com.  Website: https://www.tiponimmigrationguide.com