Understanding How the Process Changes for a Widow or Widower
Losing your partner is unthinkable, devastating tragedy that no one hopes to experience. If your spouse is also your means of immigrating to the United States, their passing away can raise distressing questions about your future in the country. Will you be able to stay in the U.S., even if you are not yet a citizen? How will I communicate all of this to United States Citizenship and Immigration Services (USCIS)? How can I possibly handle a complicated immigration process when I am already experiencing so much grief?
The one piece of good news is your future in the United States is by no means jeopardized should you lose your spouse, so long as they were a U.S. citizen. USCIS has a specific process in place for lawful permanent residents who find themselves in this unenviable position. Below, we review how someone whose partner has passed away can still remove conditions on their green card and continue to live and work in the United States.
Obtaining a Green Card When Your Deceased Spouse Has Yet to File a Petition
If you had not already begun the process of applying for a marriage-based green card, you might worry you are out of luck. Thankfully, relatively recent changes to U.S. law allow widows and widowers of U.S. citizens to apply for marriage-based green cards as single petitioners.
The most important thing to understand is that you must begin the process – that is, submitting your application to USCIS – within 2 years of your spouse’s death. You must also not have been legally separated at the time of your spouse’s passing. Living apart is not an issue so long as there is no divorce, annulment, or other court order recognizing a separation.
If you intend to pursue a green card based on your marriage to your deceased, U.S. citizen spouse, you should not remarry before doing so. You can, of course, remarry as you please, but USCIS will no longer accept an application for a green card based on your previous marriage once this occurs. If you end up remarrying to another U.S. citizen, they can instead sponsor you, but it is often more efficient to pursue a green card as a single petitioner.
Note that you will need to file I-360, the Petition for Amerasian, Widow(er), or Special Immigrant should you choose to pursue a green card after your spouse has passed. The substance of the process will more or less be the same: You must meet every other eligibility requirement, including not having grounds of inadmissibility preventing you from entering the United States. You will submit evidence to USCIS proving the authenticity of your marriage, including material supporting the fact that you were still together at the time of your spouse’s death. You will also be expected to provide a copy of your spouse’s death certificate, and you will attend the in-person interview with a USCIS officer alone.
Obtaining a Green Card When Your Deceased Spouse Has a Petition Pending
There are some situations in which a spouse can pass away while waiting to learn USCIS’s decision on a submitted I-130, or the Petition for Alien Relative. Your U.S. citizen spouse must file this petition to initiate the process of sponsoring you for a green card. USCIS processing times vary, but it is not uncommon for it to take months or even years for a ruling to be made.
Should your spouse pass away while waiting to hear from USCIS, the agency will not force you to start over. You should promptly inform USCIS of the death of your spouse, including sending a copy of their death certificate, but they will otherwise continue to process your application as if nothing changed. If you have yet to conduct your interview, you will meet with a USCIS agent alone. There they might ask questions about your spouse’s death, including confirming that you two were still together at the time of their passing.
If your I-130 petition was approved but you are awaiting a decision on an Adjustment of Status application when your spouse passes away, USCIS will again not require you to submit again. They will still complete the processing of the pending application and make a decision.
If your spouse passes before an Adjustment of Status application has been filed, you can still submit one without your partner. Typically, one can complete Form I-485, the Application to Register Permanent Residence or Adjust Status, on their own, with one important exception. A sponsoring spouse in normal circumstances must enclose Form I-864, the Affidavit of Support, with the application. This requirement is waived for widows and widowers.
Removing Conditions from a Green Card After a Spouse Has Passed
If you receive a green card through a newer marriage – one less than 2 years-old – you will receive a “conditional” green card. Unlike other green card with 10-year validity periods, conditional green cards expire after 2 years, and the process of “removing conditions” is fairly involved.
Traditionally, a married couple would jointly file to “remove conditions” on a green card through Form I-751, the Petition to Remove Conditions on Residence, within 90 days of expiration. If your spouse passes away after you receive a conditional green card but before you can together remove conditions, you still have options.
If your spouse has passed away, you do not need to complete the joint filing sections of Form I-751. Instead, you should complete the “Waiver or Individual Filing Request” section with the justification that your spouse is deceased.
The point of conditional residency is to affirm for a second time that a marriage is authentic and not only formed to facilitate a green card. As such, you will still need to prove to USCIS that your marriage continued after receiving your conditional green card and that you were still together at the time of your spouse’s passing.
Finally, note that you have the ability to file Form I-751 at any point before your conditional green card expires should your spouse pass away. You do not need to wait until the 90-day window before its expiration opens.
Difference Between Marriages to U.S. Citizens and Lawful Permanent Residents
Immigrants with U.S. citizen spouses have fairly robust options to assist them with procuring green cards should their partners pass away. Unfortunately, options for those with deceased U.S. lawful permanent resident spouses are more limited.
If a visa petition has already been filed by your now-deceased permanent resident spouse, you may still be able to pursue an adjustment of status when your Priority Date becomes current. If you are abroad at the time of your spouse’s passing, USCIS may grant “humanitarian reinstatement,” which opens the door to obtaining a green card through consular processing. Both of these scenarios require a careful level of attention and will likely necessitate the assistance of a qualified legal professional.
We Can Help You Navigate Green Card Obstacles After Your Spouse Passes Away
As you mourn the loss of your partner, the last thing you will want to think about is how your loss will complicate your immigration journey. Our immigration attorneys at Kanu & Associates, P.C. are empathetic to the unimaginable hardship one experiences when they lose their spouse, especially amidst an often-turbulent effort to immigrate to the United States. We have nearly two decades of experience helping clients navigate challenges of all sizes and complexities, and we are prepared to help you overcome any difficulties that might arise in the wake of your spouse’s death. Our goal is to help you efficiently obtain your green card or remove conditions as painlessly and efficiently as possible.
Schedule a consultation with our team to learn more about how we can help you obtain your green card. Call (602) 353-7795 or contact us online today.