Immigration Options for Widows and Widowers of U.S. Citizens

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The death of a spouse is an emotionally draining experience. It is even more devastating when you are a foreign national spouse, and your US citizen spouse dies. Your US citizen spouse’s death may put you in a very uncomfortable position and at risk of violating immigration law in the United States. It is essential to understand your rights, separate immigration benefits, and the process to obtain permanent resident status in the United States.

At Andrew T. Thomas, Attorneys at Law, we have extensive experience handling various immigration issues. We can evaluate your case and assist you in determining your eligibility for immigration benefits and permanent residence in the event of the death of a US citizen spouse. We can also protect your rights and help you properly complete the necessary documentation to secure your stay in the United States.

Eligibility Criteria for Widow(er) Immigration

To qualify for immigration as a surviving spouse when a citizen spouse dies, specific requirements need to be met:

  • You may have been legally married to a US citizen at the time of their death.

  • Your marriage was a bona fide marital relationship entered into in good faith and not for immigration purposes.

  • At the time when your spouse passed away, you were not divorced or legally separated.

  • You did not remarry after your citizen spouse’s death.

The eligibility for surviving spouse immigration does not demand a specific marriage duration, unlike spousal petitions that require a minimum two-year marriage duration. One can apply for a green card as a surviving spouse, even if the marriage was brief or lacked cohabitation.

Furthermore, there is no requirement for a pending or approved petition from the spouse, and you can submit Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant independently.

The Application Process Explained

For Residents in the United States

Residents with lawful immigration status can seek a green card as a surviving spouse through “adjustment of status.” This facilitates transitioning from temporary visa status to permanent residency without leaving the country.

Required forms and documents for US Citizenship and Immigration Services (USCIS) include:

After gathering all required forms and documents, a resident widow(er) will need to:

  1. Submit all forms to USCIS.
  2. After filing, an acknowledgment receipt from USCIS will confirm package reception.
  3. Attend a biometrics appointment to provide fingerprints, photographs, and a signature.
  4. Attend an interview.
  5. Receive your green card granting you lawful permanent residence.

For Non-Residents

Those outside the US without lawful immigration status can pursue a green card through “consular processing.”

The consular processing sequence involves:

  1. Filing Form I-360 with USCIS, fees, and supporting evidence to validate eligibility.
  2. Awaiting USCIS approval and for the National Visa Center (NVC) to assign a case number and invoice ID number.
  3. Paying visa fees and submit the required forms and documents online.
  4. Waiting for NVC review, scheduling a visa interview at your home country’s US embassy/consulate, and attending the interview with original online-submitted documents.
  5. Upon approval, entering the United States within six months to receive the green card.

Pathways To Permanent Residency and Citizenship

The surviving spouses of US citizens can become US citizens after obtaining a green card. You can apply for US citizenship after five years as a permanent resident, similar to most green card holders.

If you cannot prove the marriage to your deceased spouse was legitimate, you can be granted a conditional green card valid for two years and subject to removal. To remove the conditions, you may file Form I-751 within 90 days before the conditional green card expires. Failure might lead to permanent residency loss and potential removal from the United States.

If USCIS approves your petition, you will receive a regular green card that is valid for ten years and can be renewed indefinitely. You will then be able to apply for US citizenship after five years of being a permanent resident, following the same steps and requirements described above.

The Role of VAWA in Widow Immigration Cases

The Violence Against Women Act (VAWA), aimed at protecting victims of domestic violence and other crimes, extends to abused spouses of US citizens or lawful permanent residents. VAWA immigration allows self-petitioning for a green card without relying on the abuser’s sponsorship. VAWA immigration can offer an alternative for widows who qualify.

Some critical notes about the role of VAWA in surviving spouse immigration:

  1. Eligibility for VAWA immigration arises if one was abused by the US citizen spouse before their passing.
  2. Remarriage to a US citizen or lawful permanent resident after the spouse’s death disqualifies for widow(er) immigration but might open eligibility for VAWA immigration based on the new marriage.
  3. The application involves filing Form I-360 with USCIS. You must include evidence of marriage, abuse, good moral character, and adherence to the US Constitution.

Legal Hurdles and How to Overcome Them

Navigating surviving spouse immigration is not straightforward. Some potential legal hurdles include:

  • Proving the authenticity of marriage, especially in short-term or non-cohabitating marriages. This might require substantial evidence like financial documents, photos, and interviews.

  • Validating the deceased spouse’s US citizenship, particularly if they obtained citizenship through naturalization or were born outside the United States.

  • Obtaining the spouse’s death certificate could be challenging in specific circumstances like death abroad or disputed scenarios.

  • Remarriage after the passing of the sponsoring spouse.

  • Handling conditional green cards requires timely filing to avoid permanent residency loss, substantiated by evidence of genuine marriage.

Each case is different and may have its unique challenges and complications. That is why you need the help of an experienced immigration attorney.

Andrew T. Thomas, Attorneys at Law Can Help

Surviving spouse immigration is a channel for widows or widowers of a deceased spouse to pursue residency in the US. However, the process entails meeting eligibility criteria, navigating application procedures, and overcoming legal complexities. Seeking guidance from proficient immigration attorneys is crucial.

At Andrew T. Thomas, Attorneys at Law, we have a proven track record of handling complex immigration issues, including widow(er) immigration cases. We understand the emotional and legal challenges you are facing, and we are here to help you achieve your immigration goals. We offer personalized legal strategies for your unique situation and are committed to client success.

The loss of a spouse can be devastating and can put you in a difficult situation as an immigrant. If your US citizen spouse died, we are here to help. Contact us today for assistance in navigating surviving spouse immigration.