Immigration Blog

June 26, 2024

Widow Petition

latino man looking at paperwork at a desk

Navigating the immigration process can be particularly challenging for those who have lost their spouses. For widows and widowers of U.S. citizens, a widow petition offers a path to obtain a green card, provided they can prove their marriage was in good faith. This petition allows the surviving spouse to continue the immigration process after their loved one’s passing.

To begin, applicants must file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant along with the necessary documents. Additionally, they can file Form I-485, Application to Register Permanent Residence or Adjust Status, either concurrently with the I-360 Form or afterward if they entered the United States legally or have 245(i). If an I-485 application was already submitted based on the deceased spouse, USCIS will continue processing it without requiring a new application.

Widow Petition Process

For widows and widowers of U.S. citizens, securing a green card involves meeting the qualifications that validate the authenticity of the marriage. To qualify for a widow petition, the following conditions must be met:

  • Marriage to a U.S. Citizen: You must have been married to a U.S. citizen who was a citizen at the time of their death.
  • Timing of Death: Your spouse must have passed away less than two years before the date your application was filed.
  • Marital Status: You were not legally separated from your spouse at the time of their death, and you have not remarried.
  • Proof of Relationship: You must provide evidence of a bona fide relationship until their passing.
  • Admissibility: You must be admissible to the U.S.

If you remarry, eligibility for the widow petition ends. However, if you were married to a U.S. citizen but had not filed the I-130, Alien Petition form, you can still self-petition as an “immediate relative” using Form I-360. This process ensures that surviving spouses can continue their immigration journey while honoring the integrity of their marriage.

Applying for a Widow Petition

Applying for a widow petition requires submitting Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, along with supporting evidence.

Here is a list of the required documentation:

  • Marriage Certificate: A copy of your marriage certificate to your U.S. citizen spouse.
  • Proof of Prior Marriages Termination: Proof of termination of any prior marriages for either you or your deceased spouse.
  • Proof of Spouse’s U.S. Citizenship: Evidence such as a birth certificate, certificate of citizenship issued by USCIS, naturalization certificate, Form DS-240 (Report of Birth Abroad of a Citizen of the U.S.), or a valid U.S. passport at the time of their death.
  • Death Certificate: A copy of your spouse’s death certificate.
  • Your Birth Certificate
  • Passport-Style Photos: Passport-style photos of yourself.
  • Copy of Passport Page: A copy of the biographical page of your passport.
  • Proof of Admission: Proof of admission to the country or parole stamp.

Collecting and organizing these documents is a crucial step in the application process, ensuring that your widow petition is comprehensive and meets all requirements.

What Happens if You Have a Pending or Approved I-130 Petition?

When a U.S. citizen spouse files an I-130 Petition for Alien Relative and then passes away, the petition is automatically converted to an I-360 Petition for Amerasian, Widow(er), or Special Immigrant under certain conditions. This means that the surviving spouse does not need to file a new petition. 

If the I-130 petition filed by your deceased U.S. citizen spouse was approved or is still pending at the time of their death, it will automatically convert to an I-360 petition. In order to qualify for Adjustment of Status you will need 245i or proof of a legal entry. You may be able to continue your consular process and will need to show extreme hardship based on the death of your spouse for the I-601A waiver.  

Any unmarried children under the age of 21 can be included in the I-360 petition, regardless of whether the deceased spouse had filed a separate petition for them.

Here are the steps and requirements to keep in mind:

  • Notification of Death: You must notify USCIS of the death of your spouse to facilitate the conversion of the I-130 to an I-360.
  • Evidence Submission: Provide proof of your marriage, the death certificate of your spouse, and any other required documentation to USCIS.
  • Children’s Eligibility: Ensure that any children included are unmarried and under the age of 21.

The purpose of this regulation is to provide relief to the surviving spouse and children, ensuring that their immigration process is not unduly disrupted by the death of the petitioning spouse.

Widow of a Military Member

Widows and widowers of U.S. military members who were killed in combat are granted special immigration benefits under Section 1703 of Public Law 108-136. This provision allows them to self-petition for “immediate relative” status using Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. Through this process, eligible individuals can seek legal immigration status in the United States based on their relationship to the deceased service member. This recognition reflects the government’s acknowledgment of the sacrifices made by military families and aims to provide support and assistance to those who have lost their spouses in service to their country.

Humanitarian Reinstatement

Under USCIS regulations, USCIS has the discretion to decide whether or not to revoke an approved petition upon the petitioner’s death for humanitarian reasons. This relief can only be requested by the principal beneficiary of an approved petition. 

To request reinstatement, you must submit a written statement to the office that approved your petition along with the supporting evidence requested by USCIS, as many offices will not accept repeat requests. You should wait to file your request until you have a substitute sponsor for Form I-864, Affidavit of Support, or Form I-864W since the petitioner can no longer provide this support.  

If you are the child of a widow(er) of a U.S. citizen, you may be included in your parent’s petition. As an “immediate relative,” you are granted benefits under the Child Status Protection Act (CSPA), which “freezes” your age as of the date of the principal’s filing of Form I-130 or I-360, whichever is applicable. 

This provision prevents you from aging out if you turn 21 before adjudication of your Adjustment of Status (AOS) Application or visa application. However, you must continue to meet other filing requirements.

USCIS handles these requests on a discretionary basis and, if the request is denied, it cannot be appealed. There is no form or fee required to request humanitarian reinstatement. 

 

If you need further assistance or have specific questions about the widow petition process or any other immigration-related matters please contact Attorney Diana Bailey of Portland, Oregon, and Fresno, California who has over 25 years of immigration law experience.  Please call our office for a free telephone consultation at 503-224-0950.