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Widows and Widowers of U.S. Citizens

Widows and Widowers of U.S. Citizens

Losing a spouse is difficult. When the deceased spouse was also responsible for an immigration petition, the surviving spouse may be left worried about whether the green card process can continue.

Fortunately, U.S. immigration law may allow the widow or widower of a U.S. citizen to continue an existing immigration case or begin the process independently. However, strict deadlines and eligibility requirements may apply..

Who Qualifies as the Widow or Widower of a U.S. Citizen?

A surviving spouse may qualify for immigration as an immediate relative when:

  • The deceased spouse was a U.S. citizen at the time of death;
  • The couple was legally married and not legally separated when the U.S. citizen died;
  • The marriage was genuine and not entered into only for immigration purposes;
  • The surviving spouse has not remarried before becoming a permanent resident; and
  • If no petition was previously filed, the surviving spouse files Form I-360 within two years of the U.S. citizen’s death.

There is no minimum marriage length. A marriage lasting less than two years may still qualify, as long as the other requirements are met.

What Happens if the U.S. Citizen Already Filed Form I-130?

If the deceased U.S. citizen filed Form I-130 for the surviving spouse, the case may not have to start over. USCIS generally converts a pending or approved Form I-130 into a widow or widower petition.

The surviving spouse should promptly notify USCIS, the National Visa Center, or the U.S. embassy or consulate handling the case. Provide a copy of the death certificate and information identifying the pending petition.

Before filing a separate Form I-360, determine whether an existing Form I-130 has already converted automatically.

Can a Widow or Widower Apply for Adjustment of Status?

A qualifying widow or widower who is physically present in the United States may be eligible to apply for adjustment of status using Form I-485.

Adjustment of status may be available when the applicant:

  • Was inspected and admitted or paroled into the United States, unless another legal exception applies;
  • Remains eligible for classification as the widow or widower of a U.S. citizen;
  • Is admissible to the United States or qualifies for any necessary waiver; and
  • Meets the other requirements for adjustment of status.

Because qualifying widows and widowers are treated as immediate relatives, an immigrant visa is generally immediately available. In appropriate cases, Form I-360 and Form I-485 may be filed together.

An overstay or unauthorized employment does not automatically prevent every immediate relative from adjusting status. However, entry without inspection, fraud or misrepresentation, criminal history, prior removal proceedings, and other immigration violations can affect eligibility and require careful review.

Qualifying widow or widower self-petitioners generally do not need a Form I-864 sponsor. Applicants seeking this exemption inside the United States request it through the current Form I-485.

What if the Surviving Spouse Lives Outside the United States or Cannot Adjust Status?

A qualifying widow or widower living outside the United States may pursue an immigrant visa through consular processing. After the widow petition is approved, the case generally proceeds through the National Visa Center and the appropriate U.S. embassy or consulate.

Consular processing may also be an option when a surviving spouse is in the United States but is not eligible to adjust status here. This process generally requires the applicant to leave the United States and attend an immigrant visa interview at a U.S. embassy or consulate abroad.

Before departing the United States, the applicant should obtain individualized legal advice. Departure may trigger a three-year or ten-year unlawful-presence bar, and other grounds of inadmissibility may require a waiver or otherwise affect the applicant’s ability to return. The potential consequences of departure should be evaluated before the applicant makes travel plans or leaves the United States.

Can Children Be Included?

The surviving spouse’s unmarried children under 21 may qualify as derivative beneficiaries of the widow petition. The Child Status Protection Act may help some children who turn 21 while the case is pending, but you should review the child’s eligibility carefully.

What if the Widow Already Has a Conditional Green Card?

If the surviving spouse already received a two-year conditional green card before the U.S. citizen died, Form I-360 may not be the correct process. The conditional resident may generally file Form I-751 individually, together with proof of the spouse’s death and evidence that the marriage was genuine.

How Our Immigration Law Firm Can Help

The Law Offices of Osas Iyamu, LLC can help surviving spouses:

  • Determine whether Form I-360 is required;
  • Address a pending or approved Form I-130;
  • Evaluate eligibility for adjustment of status or consular processing;
  • Identify possible inadmissibility or entry-related problems;
  • Include eligible children in the immigration case; and
  • Prepare the petition, green card application, and supporting evidence.

Speak With an Immigration Attorney About Your Case

The death of a U.S. citizen spouse does not necessarily end the surviving spouse’s opportunity to obtain permanent residence. Because the filing deadline and proper immigration process depend on the facts of each case, early legal review is important.

Contact the Law Offices of Osas Iyamu, LLC at (352) 237-2403 to schedule a consultation. Our Ocala, Florida immigration law office assists clients throughout the United States and internationally. Office hours are Monday through Friday, 9:00 a.m. to 5:00 p.m. Office visits are by appointment, and virtual consultations are available.

This page provides general information and does not constitute legal advice or create an attorney-client relationship. Immigration eligibility depends on the facts and applicable law.

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