Written by Crispin Aranda
Posted on December 29, 2016 |
Is a visa petition by a U.S. citizen for a spouse - like love - forever, living on even after death?
Yes, at least even if the U.S. citizen spouse passes away, the widow or widower could still follow the footsteps to U.S. citizenship by applying for lawful permanent residency or green card.
An exception is if the U.S. citizen spouse passed away sometime after October 28, 2009 without filing a visa petition for the alien spouse and/or the alien spouse was not able to submit a self-petition on or before October 28, 2011.
Note: A green card is officially called the I-551 Permanent Resident Card, issued to an immigrant visa holder who had been admitted into the United States. Therefore, before a green card is issued, the widow or widower must first file or submit the I-360 visa self-petition, then apply for and be issued the immigrant visa. After being admitted into the U.S. the widow/.widower receives the green card by mail.
USCIS Petition Overview
Here’s an overview from the U.S. Citizenship and Immigration Services (USCIS) that we are sharing with you – with our annotation.
Widows or widowers who were married to U.S. citizens
at the time of the citizen’s death may apply for a green card.
Until October 28, 2009, you had to have been married to the deceased citizen for at least two years at the time of the deceased citizen’s death, in order to immigrate as the widow(er) of a citizen. Congress removed this (2-year marriage) requirement, effective October 28, 2009.
To immigrate as the widow(er) of a citizen, you must prove that you were legally married to the citizen, and that you entered the marriage in good faith, and not solely to obtain an immigration benefit.
If you were married to a U.S. citizen who had filed Form I-130, Petition for Alien Relative for you before he or she died, you do not need to file anything. The Form I-130 will be automatically converted to a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. If you have children (unmarried and under age 21), they may be included on the Form I-360 regardless of whether your deceased spouse had filed a petition for them.
To qualify, you must not have been divorced or legally separated from the U.S. citizen at the time of death. Your eligibility to immigrate as a widow(er) ends if you have remarried.
If you were married to U.S. citizen before the citizen’s death, but had no I-130 petition filed on your behalf, you can self-petition as an “immediate relative” on Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
To qualify, you must not have been divorced or legally separated from the U.S. citizen at the time of death. Your eligibility to immigrate as a widow(er) ends if you have remarried. You must file within 2 years of the citizen’s death.
If your citizen spouse did not have a Form I-130 pending at the time of death, you must file the Form I-360 no more than 2 years after the death of your citizen spouse.
If, however, you were married less than 2 years, and your citizen spouse died before October 28, 2009, you must file your Form I-360 no later than October 28, 2011.
For surviving spouses of deceased U.S. military members who were killed in combat, there are separate immigration benefits under section 1703 of Public Law 108-136. Individuals in these categories may self-petition for “immediate relative” status on Form I-360.
You may be eligible to receive a green card through widow/widower status if you:
To obtain a green card, you need to file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with all required documents as listed in the form instructions. If your spouse filed Form I-130, Petition for Alien Relative, before his or her death, we will consider the petition as if you had filed an I-360.
You may file Form I-485, Application to Register Permanent Residence or Adjust Status, either at the same time you file your Form I-360 or after you file the Form I-360 whether it is pending or approved. If you already filed Form I-485 based on the petition filed by your spouse, USCIS will continue to process this application and you do not need to file another one.
Where to file - If you live outside the U.S and are self-petitioning, you may file Form I-360 at the USCIS office or U.S. Embassy or consulate that has jurisdiction over the area where you live.
For widows/widowers in various categories and inside the U.S. please check this link for the current procedures on filing - https://www.uscis.gov/forms/direct-filing-addresses-form-i-360-immigrant-petition-amerasian-widower-or-special-immigrant
After approval. Your approved petition will be forwarded overseas to the U.S. embassy or consulate that has jurisdiction over where you live. In the case of Filipino widow/widower of U.S. citizens, it would be at the U.S. Embassy in Manila after being routed to the National Visa Center.
You should submit the following evidence/documentation with your application:
You will need to undergo a medical exam to be eligible for adjustment as an immediate relative. To locate a civil surgeon near you, see the “Find a Medical Doctor” page. In the Philippines, only St. Luke’s Medical Center is accredited or authorized to conduct the medical exam. Click here for the current procedures on applying or registering online to avoid long lines and delays - http://www.slec.ph/us/registration/index.php
Children of Widow(er) of a U.S. Citizen
Your unmarried children under the age of 21 (known as “derivatives”) may be included on your immigration petition.
As “immediate relatives,” your derivative children are granted benefits of the Child Status Protection Act, which “freezes” their ages as of the date of the principal’s filing of Form I-130 or I-360, whichever is applicable.
(The Filing Date or Priority Date is on the Receipt Notice or Approval Notice sent by the USCIS to the petitioner at the last known address. If you do not have a copy, or cannot find a copy of the original notice, you may request for a duplicate approval notice by submitting an I-824 Form. There is a $465 filing fee. For more info and a copy of the form, click here - https://www.uscis.gov/i-824
This provision prevents them from aging-out if they turn 21 prior to adjudication of their adjustment-of-status or visa application. They must, however, continue to meet any other additional filing requirements.
Generally, when you have a pending Form I-485, it is possible for you to apply for authorization to work in the United States and to seek advance parole (advance permission to travel and be admitted to the United States upon your return).
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