Marriage between a U.S. citizen and a non-U.S. citizen inherently raises complex issues, not the least of which are those involving immigration law. In the United States, a foreign person who marries a U.S. citizen can receive permanent resident status, which represents one major step toward full citizenship.
What happens if U.S. citizen dies before their spouse receives their green card for permanent residency? The law makes accommodations for this sad event by creating procedures that allow spouses to continue working toward permanent residency and, eventually, citizenship.
Here’s an outline of the process from the experienced immigration law attorneys at De Castroverde Law Group in Las Vegas.
What To Do if Your U.S. Citizen Spouse Dies
Generally speaking, two circumstances allow you to maintain permanent residency if your U.S. citizen spouse passes away. The first involves having either a pending or approved “Petition for Alien Relative,” also known as Immigration Form I-130.
If the form has already been approved, you will continue to maintain your status as a permanent resident and can continue through the process of obtaining your U.S. citizenship. If the form is pending, the U.S. Citizenship and Immigration Service (USCIS) will automatically convert it to a Form I-360, known as “Petition for Amerasian, Widow(er), or Special Immigrant.”
If your spouse died before filing Form I-130, you must file Form I-360. The requirement is that you file this petition within two years after the death of your spouse. You can also pursue your green card, and the good news is that the law allows you to move to the front of the line for processing.
While the USCIS website includes detailed directions on filing each form, consider getting advice from experienced legal counsel. The team at De Castroverde Law Group can review the circumstances of your situation, help you collect the proper documents, and file your petition and supporting evidence to the right place.
Who Qualifies To File a Widower Petition?
Those who wish to file a widower petition under U.S. immigration law must satisfy several conditions. The most important, of course, is demonstrating that the widower was legally married to a U.S. citizen at the time of their passing. A divorce or legal separation would disqualify a widower from petitioning for relief.
Additionally, the widower cannot have remarried and must have in their possession a pending or approved I-130 Form or an I-360 Form, and both must be dated within two years of the spouse’s death.
The law also allows for situations involving surviving foreign-born spouses of U.S. military members killed in combat. Generally speaking, those spouses may seek to receive immediate relative status under Form I-360.
What’s the Process of Filing a Widower Petition?
The law specifies that your Form I-360 must be filed with additional documents to prove the existence of your current marriage. Make sure to include the following:
- A copy of your marriage certificate.
- If relevant, proof of termination of prior marriages for either you or your spouse.
- Copies of evidence proving that your spouse was a U.S. citizen, such as a birth certificate, a naturalization certificate, a certificate of citizenship issued by the USCIS, or a U.S. passport.
- A copy of your spouse’s death certificate.
Your filing location depends on where you live. USCIS advises that you should check the USCIS website at www.uscis.gov/i-360 or call the National Customer Service Center at 1-800-375-5283 for the most current information about where to file this petition. The TTY number for persons who are deaf or hard of hearing is 1-800-767-1833.
You must also file Form I-360 with the proper filing fee of $435 as a check or money order made payable to the U.S. Department of Homeland Security.
Just be aware that Form I-360 is a consolidated form used to petition the government for permanent residency in cases that do not involve widowers. For instance, the petition can be used by religious workers, Panama Canal company employees, an Afghan or Iraqi national who worked on behalf of the U.S. government as a translator, or broadcasters for the U.S. Agency for Global Media. Follow the instructions for the widower section on the form.
Special Circumstances: Engaged but Not Married
Immigration law also includes provisions that cover situations when a U.S. citizen is engaged, but not yet married, to a non-U.S. citizen who lives outside the country. Citizens can apply to the USCIS for a fiancé visa. Under the terms of the visa, your fiancé can enter the United States for 90 days to allow you to be together for the marriage ceremony.
Once the marriage is complete, you and your spouse can apply for permanent residency, also known as receiving your green card. The law allows you to stay in the United States while processing the application. It is, of course, allowable for you to get married outside the United States. You can file Form I-130 to apply for the green card/permanent residency status.
Unfortunately, if your spouse dies before marriage, you face challenging circumstances. You can only continue your request for permanent residency if you have another family member or employer in the United States who can sponsor you.
Get Proper Immigration Counsel From De Castroverde Law Group
Given the complexity of the requirements under immigration law involved with marriages between citizens and non-citizens, getting experienced legal counsel makes good sense. Let the team at De Castroverde Law Group provide the legal advice you need to handle these situations properly.
The award-winning immigration lawyers at De Castroverde Criminal & Immigration understand how intimidating it can be to face issues of immigration. We will work hard and provide you with the representation you need in various matters of immigration law. Whether it be immigrant visa processing, deportation hearings, or family immigration petitions, we know each area and understand the laws surrounding them. Our office was among the first to offer a bilingual staff to overcome cultural gaps. Let us help you through this difficult time. Call us or contact us online for a consultation.