The spouse of a deceased U.S. citizen can continue their marriage-based green card petition or file a green card petition (Form I-360) by themselves within 2 years of the U.S. citizen’s death. The widow(er) must have been married to the U.S. citizen at the time of the U.S. citizen’s death and the person cannot get remarried before their green card is issued. The dependent children (unmarried and under 21 years old) of the widow(er) can be listed as derivatives who can obtain their green card through this petition.
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The widow(er) must have been married (cannot be divorced or legally separated) to the U.S. citizen at the time of the U.S. citizen’s death. The widow(er) green card petition (Form I-360) must be filed within 2 years of the U.S. citizen’s death and the widow(er) cannot be remarried to another person when filing for this green card petition.
The original statutory wording for qualified persons in marriage-based green card petitions of widow(er)s of deceased U.S. Citizens can be found in 8 CFR 204.2(b).
With a Marriage-Based Green Card Petition (Form I-130)
If the widow(er) already has a pending or approved marriage-based green card petition (Form I-130) before the U.S. citizen’s death, the marriage-based green card petition (Form I-130) will automatically be changed into a widow(er) green card petition (Form I-360).
Without a Marriage-Based Green Card Petition (Form I-130)
If the widow(er) does not have a pending or approved marriage-based green card petition (Form I-130) before the U.S. citizen’s death, they can file a widow(er) green card petition (Form I-360) by themselves within 2 years of the U.S. citizen’s death.
The widow(er) green card petition has four main requirements that need to be satisfied: evidence must be provided to the USCIS to show that (1) the deceased spouse was a U.S. citizen at the time of death, (2) the couple was legally married at the time of the U.S. citizen’s death, (3) the widow(er) green card petition is filed within 2 years of the U.S. citizen’s death, and (4) the foreign person is admissible to enter the United States.
Evidence Required for the Widow(er) Green Card Petition
A general (not exhaustive) checklist for what is required for a widow(er) green card petition is listed below. The evidence provided to the USCIS for the widow(er) green card petition must show:
- U.S. passport (it must have been valid at the time of the deceased spouse death)
- Birth certificate (if deceased spouse was born in the United States)
- Naturalization Certificate or Certificate of Citizenship (issued by the USCIS)
- Consular Report of Birth Abroad (Form FS-240) issued by a U.S. consulate or embassy
The widow(er) must have been married to the U.S. citizen at the time of the U.S. citizen’s death
- Death certificate of U.S. citizen
- Marriage certificate to U.S. citizen
- Documents that show legal termination of all prior marriages for the foreign spouse and deceased U.S. citizen (e.g., divorce decree, annulment order, death certificate of prior spouse)
- Two passport photos
- Birth certificate
- Passport pages (it should include biographical page, related U.S. visas, admission stamps, parole stamps)
- Arrival/Departure Record (Form I-94)
- Report of Medical Examination and Vaccination Record (Form I-693)
- Receipt notice or approval notice (Form I-797) of the marriage-based green card petition (Form I-130) or widow(er) green card petition (Form I-360) if not filing the adjustment of status (Form I-485) concurrently
The original statutory wording for the evidentiary requirements of marriage-based green cards for widow(er)s of deceased U.S. Citizens can be found in 8 CFR 204.2(b)(2).
The total time a widow(er) green card takes is consisted of the processing time for (1) the widow(er) green card petition (Form I-360) with the USCIS and (2) the change of status when the person’s priority date becomes current by filing the Form I-485 application if adjusting status within the United States or the DS-260 application if doing consular processing at a U.S. consulate or embassy located outside the United States. The change of status for the widow(er) green card petitions is usually filed concurrently (at the same time) as the green card petition itself because the spouse of a deceased U.S. citizen is under the immediate relative system which has no wait time for an available visa (green card).
Factors that influence the widow(er) green card processing time usually include but are not limited to where the person was born, if there was any Request for Evidence (“RFE”) issued, and the caseload of the USCIS service center, National Visa Center (NVC), and the U.S. consulate or embassy.
A rough estimate for the Form I-360 petition under the widow(er) green card petition is around 12 to17 months and premium processing is not available.
After the USCIS approves the widow(er) green card petition, the widow(er) must then change into their green card holder visa status. Changing into the widow(er) green card visa status (the lawful permanent resident immigrant visa status) is the final step in being able to work freely and live permanently in the United States. There are two ways to obtain the green card visa status: adjustment of status and consular processing.
Adjustment of status is usually for a person who is already in the United States with a valid nonimmigrant visa status and has maintained a lawful visa status throughout their time within the United States. On the other hand, consular processing is for a person living outside the United States or for a person who is ineligible in adjusting their status in the United States.
For a person who is residing overseas (outside the United States) or a person who is ineligible for an adjustment of status with the Form I-485 application, consular processing must be done to obtain the widow(er) green card visa status (i.e., lawful permanent resident). Consular processing usually involves the person attending an in-person interview at the U.S. consulate or embassy located in their home country. In certain circumstances, a person can do consular processing in another country as a “Third Country National.”
After the interview approval at the U.S. consulate or embassy, the person would have to be admitted entry into the United States by the CBP officer at the border (usually at the airport). In other words, the person would have to physically enter the United States after their interview approval as the final step for their widow(er) green card visa status to be activated.
For a person who is already in the United States with a valid nonimmigrant visa, there are usually two options available to obtain their widow(er) green card visa status (Lawful Permanent Resident):
(1) Adjustment of Status: this is the more commonly chosen option where the person would file a Form I-485 application to adjust their status without leaving the United States. The person would attend an in-person interview at a local USCIS office in the United States and the interview approval would serve as the final step for their widow(er) green card visa status to be activated.
The adjustment of status application (Form I-485) can be filed when the person’s priority date becomes current in the Visa Bulletin which means that there are no backlogs in visa availability for the person’s country of birth (not country of citizenship). This can happen while the widow(er) green card petition (Form I-360) is still pending (i.e., before approval) with the USCIS or after the green card petition (Form I-360) is approved by the USCIS. It can also happen in concurrent filings (Form I-360 and Form I-485 sent together) where the person’s priority date is already current at the time of filing the green card petition (Form I-360) to the USCIS. Widow(er) green card petitions are usually filed concurrently (at the same time) as the adjustment of status application because the spouse of a deceased U.S. citizen is under the immediate relative system which does not need to wait for an available visa (green card).
When the adjustment of status application (Form I-485) is filed, applications for the employment authorization document (Form I-765, commonly known as the “EAD card”) and the travel document (Form I-131, commonly known as “Advance Parole”) can also be filed at the same time.
The EAD card allows unrestricted employment where a person can change their job freely and can legally work for any employer in the United States, unlike a work visa such as an H1B visa which restricts a person to work for a specific employer in the United States.
Advance parole allows a person to travel internationally while their adjustment of status is still pending. If a person has a pending adjustment of status application (Form I-485) with the USCIS but leaves the United States without advance parole and does not have a certain valid nonimmigrant visa status (H1B visa, H4 visa, L1 visa, L2 visa, K3 visa, K4 visa, V visa) that allows international travel, their adjustment of status will be considered abandoned.
(2) Consular Processing: this is usually chosen if a person cannot show that they have maintained their lawful visa status in the United States or when the processing time for consular processing is much faster than the adjustment of status.
Dependent children (unmarried and under 21 years old) of the widow(er) can be listed as derivatives in the widow(er) green card petition (Form I-360) even if the deceased U.S. citizen did not file a family-based green card petition (Form I-130) for them.
The widow(er) green card petition is for the surviving spouse (and their dependent children) of deceased U.S. citizens to obtain their green card. The widow(er) green card petition must be submitted within 2 years of the U.S. citizen’s death and the widow(er) cannot be remarried to another person when filing for this green card petition.
If you have a widow(er) green card (foreign spouses of deceased U.S. citizens) immigration question, please fill out our contact us form or send us an email with some basic information about your background and your immigration needs. We will do our best to respond within 48 hours.
How we can help?
Kylie Huang Law’s immigration attorney will help identify if the client is qualified for a widow(er) green card and whether there are other green card options available to the client. We will work closely with our clients to prepare their widow(er) green card petition and we will also strategize on how the widow(er) green card petition should be presented in the filings and in the interview to achieve the best chances of approval. It is advised and common practice to retain an immigration attorney for certain unusual widow(er) green card petitions due to the complexities in the immigration process and visa requirements.
What does the typical process look like to retain (hire) us?
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- Fill out the form (with some basic information on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment online
- Attend scheduled appointment (typically a phone call or zoom meeting)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
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- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
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- Step 2:
- Step 3:
- Step 4:
- Step 5:
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- b.
- c.
- Step 6:
- Step 7:
- Step 8:
- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming content of documents that will be submitted
- Filing the case
- Following up on the case status
- Close the case when a final determination is issued
RELATED ARTICLES
- Family Based Green Card Overview
- Marriage Based Green Card (IR1 / CR1 / F2A)
- Immediate Relative of U.S. Citizen (IR)
- Family Members of Green Card Holders (F2A / F2B)
- Married Children (F3) & Unmarried Children Over Age 21of U.S. Citizen (F1)
- Brother and Sister of U.S. Citizen (F4)
- Parents of U.S. Citizen (IR5)
- Widow(er) of U.S. Citizen Green Card Checklist (EB4)
- Spouse of Green Card Holders Checklist (F2A)
- Children of Green Card Holders Checklist (F2A / F2B)
- Spouse of U.S. Citizen Green Card Checklist (IR1 / CR1)
- Children of U.S. Citizen Green Card Checklist (IR2 / IR3 / IR4 / F1 / F3)
- Sibling of U.S. Citizen Green Card Checklist (F-4)
- Parents of U.S. Citizen Green Card Checklist (IR5)