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Surviving Spouses: How to Apply for a Green Card After the Death of a U.S. Citizen Spouse

Surviving Spouses: How to Apply for a Green Card After the Death of a U.S. Citizen Spouse

Marriage to a U.S. citizen does not confer automatic citizenship; spouses (Surviving Spouses) of U.S. citizens can apply for naturalization. If you’ve been living in the U.S. for three years and are married to a citizen who lives with you, you can also apply to become a citizen.

A person with a green card can apply to become a U.S. citizen if they meet the rules in the Immigration and Nationality Act (INA). A person with a green card can apply for citizenship after five years; this applies to most people. Spouses of U.S. citizens can also apply sooner, after three years as permanent residents.

So what happens if the spouse of a U.S. citizen dies? Fortunately, the widowed spouse can still get a green card and become a U.S. citizen. Losing a partner is a tragedy that no one wants to go through. If your spouse helps you stay in the United States, their death can make you worry about your future here.

Can you stay in the country even if you do not yet have citizenship? How will I communicate with U.S. Citizenship and Immigration Services (USCIS) about this?

How can I deal with the immigration process while grieving? 

Grieving about someone you love and navigating an immigration case can be tough; if your sponsor has passed away, talk to a family attorney in NYC to help you find out if you can still apply for a green card and guide you through the process.

This article outlines a couple of things you need to know about the green card process after the death of your U.S. citizen spouse.

Eligibility Criteria to Apply for a Marriage-Based Green Card

The widow(er) of a U.S. citizen can still apply for a green card based on marriage; U.S. Citizenship and Immigration Services (USCIS) is the agency of the Department of Homeland Security (DHS) that processes immigration applications under the Immigration Nationality Act (INA).

Before October 2009, USCIS had a strict rule called “the widow’s penalty law.” Under this law, widows and widowers had to be married for at least two years before their spouse passed away to apply for a green card.

The government decided it was wrong to punish widows, so they repealed the widow’s penalty law. If you’re a widow(er), you can apply for a green card through marriage if you qualify.

Widows can get a green card through marriage if they meet certain conditions. They include:

  • 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 

You must also be able to provide the following information: 

  • Proof of your late (Surviving Spouse) spouse’s U.S. citizenship 
  • A copy of your marriage certificate 
  • Proof you or your late spouse terminated any prior marriages (if applicable); and 
  • A copy of your late spouse’s death certificate 

USCIS decides where you should file based on three factors: your eligibility category, where you live, and whether you’re also completing Form I-485 for permanent residence or status adjustment at the same time, which is also called “concurrent filing.” You can go to the USCIS website or a family attorney in NYC for more information on how to complete your application.

What Is the Marriage Green Card Process for Widow(er)s?

To obtain permanent resident status, the following needs to be completed. They are:

  • You must have a pending or approved Form I-130, Petition for Alien Relative, or submit Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, within two years after your spouse’s death. 
  • If you were married for less than two years and your spouse passed away before October 28, 2009, you must have filed one of those forms before that date to be eligible for a green card. 

The application process will differ depending on whether your spouse submitted a Form I-130 petition before their passing and whether you are applying from within or outside the United States.

Our family attorney in NYC can navigate challenges of all sizes and complexities and is prepared to help you overcome any difficulties that might arise after your spouse’s death.

Adjustment of Status

If you apply for a green card from within the US, you will go through the adjustment of the status process; if your now-deceased spouse completed Form I-130 on your behalf before their death, U.S. Citizenship and Immigration Services (USCIS) will change your Form I-130 case to a Form I-360 case.

As a result, you would not need to resubmit any materials; you would just need to notify USCIS of your spouse’s death in a letter. If your spouse did not submit Form I-130 before they passed away, you can apply instead for Form I-360.

It allows USCIS to consider your request for a green card as the surviving spouse of a U.S. citizen with Form I-360. The form I-360 will ask if you got married again or were legally separated from your spouse who died in the U.S.

You cannot apply for a green card if you answer “yes” to either of these questions. You need to fill out and submit Form I-485, the Application to Register as a Permanent Resident or Adjust Status; this applies to you regardless of the form you first filled out.

USCIS usually takes 14 to 28 months to process Form I-485. They will then send you a final decision letter to inform you if your petition has been approved. The USCIS website lets you check the status of your green card. To do this, enter the receipt number that USCIS provides after receiving your application.

If you want to learn more about completing the green card application process as a surviving spouse, a family attorney in NYC can help you with the immigration process instead of doing it alone.

Consular Processing

You must go through consular processing at the U.S. embassy or consulate in your country if you are applying for a green card from abroad. The U.S. immigration officials might convert your Form I-130 into a Form I-360 petition if your U.S. citizen spouse previously submitted it on your behalf before their passing.

You must submit Form I-360 if your spouse hasn’t filed Form I-130. If your application is approved, USCIS will forward it to the National Visa Center (NVC), a U.S. The Department of State agency will contact you about the required documents or fees.

Next, complete Form DS-260, an online application for your immigrant visa and registration. Once finished, NVC will send your file to the nearest U.S. consulate or embassy. Your embassy or consulate will reach out to you to book a time for an in-person interview and biometrics.

Medical Examination Requirement

Before your interview, you need to complete a medical examination with a USCIS-approved doctor; to find out which USCIS approves, visit your embassy’s website or consulate. You’ll need to show your passport and some papers to prove you can get a green card at the interview.

A consular official will interview you about your application. Then, they will decide if you get it or not. Most consular officers make their decisions within a week following the interview. Your consular official will issue you a U.S. visa, and after approving it, you can visit the country.

You will also receive a sealed envelope with your case file inside; do not open this package; a U.S. immigration officer will do it at an official entry point. USCIS will mail your green card to your U.S. address after you officially enter the country. The consular process takes around 17–24 months.

Getting Legal Help After the Death of a Sponsor

Losing a loved one is tough, and the immigration process can make it harder; a family attorney in NYC can help you through this difficult time. They understand your pain and can help guide you through the migration process. You will not lose your opportunity to become a U.S. citizen if you become a widow(er).

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