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Can I Still Become A Lawful Resident After My Sponsoring Spouse Dies?

QUESTIONS AND ANSWERS

My Husband Died Before I Got A Green Card.
Is There Any Way To Still Become A Permanent Resident?

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Question:

“My husband passed away a few months ago. He kept saying he would help me get my immigration papers. But he never filed anything. Do I have any hope to getting a green card based on our 20-year marriage?”

(Submitted by Regina T., Fallbrook, CA)

Answer:

You may still be eligible for permanent residency, even though you are a widow. This is an area of immigration law known as surviving spouse green card rights.

Before you move forward, here are requirements you need to know.

Was The I-130 Petition Filed By Your Husband?

First, when you wrote that your husband never filed your permanent residence application, I am not sure what you mean.

Generally speaking, there are two sets of paperwork: the initial petition to prove you have a valid marriage and the subsequent application to adjust your status to permanent resident.

  • The initial petition is called an I-130 petition.
  • The application for a green card is called an I-485 application.

They are different. So let’s look at your situation one step at a time.

Initial Petition Filed By Your Husband

Since I cannot tell from your question if your deceased husband filed any paperwork, I’ll start with the first set of paperwork. I will address two distinct possibilities.

As I noted above, the initial petition in this type of case is an I-130 petition. It is also known as an immigrant relative petition.

To address your concern, you need to figure out if the I-130 petition was filed by your husband. If he filed the I-130 petition, maybe it was already approved by the government – but maybe he was still waiting for it to be approved. Maybe a decision is still pending.

Even if the I-130 is still pending, you can proceed by filing the I-485 adjustment of status application. This application leads to your interview for a green card.

Initial Petition Not Filed By Your Husband

But if he never filed the I-130 petition, you will need to file a different set of paperwork. You will need to file a self-petition, known as a I-360 petition, with supporting evidence to prove your marriage and his death.

(Don’t worry about remembering the petition and application numbers. The “I” stands for “Immigration Form”. The number stands for the number of the application form, so you can know which form to use.)

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Important Side Note

Here is an important side note which confuses some people: You did not state if your husband was a U.S. citizen or lawful permanent resident. It no longer matters.

Be alert. Some immigration officers still make this mistake.

This is a recent change in immigration law. Previously, only spouses of U.S. citizens qualified to seek green card benefits via deceased husbands or wives. Thus, assuming you meet the other requirements, you qualify for survivor spouse immigration benefits. It does not matter whether your husband was a U.S. citizen or lawful resident.

Second, Were You And Your Husband Still Married At The Time Of His Death?

If you were divorced or separated before he passed away, you are not eligible for a green card under the surviving spouse provisions of immigration law.

Third, Have You Remarried?

It used to be that if you remarried, you could not become a green card holder under your deceased spouse’s petition.

Various federal courts have overturned this provision. They allow immigrant widows to become permanent residents despite remarriage. However, not all courts agree.

So, until a firm decision is reached for all courts, this means your answer depends on where you live at present.

Fourth, Where Did You Live With Your Spouse? And Where Do You Live Now?

According to the Surviving Relatives Law regulations, you must have resided in the United States on the date your husband died as well as have continued to reside in the U.S. since that time.

Fifth, How Long Ago Did The Death Occur?

Do not delay. There is a time limit for filing of two years after your husband’s death for certain widows. Since you said your husband passed away a few months ago, it seems you have enough time to move forward.

Before closing, let me add a few more things which might fit your situation.

Did you have any children during your marriage? If they are also immigrants, you can include them in your paperwork to become permanent residents. However, they need to be under 21 and unmarried on the date you file.

Did you enter the U.S. lawfully or without inspection? Maybe you arrived lawfully, but stayed here when you were supposed to return to your home country? Did you ever leave the U.S. after your first entry?

In short, your entry and exit history could cause problems in your efforts to become a green card holder. Be careful with these issues.

In any event, before you file any applications, I recommend you discuss the specifics of your situation with an immigration visa attorney versed in family visas, immigrant petitions, and permanent residency rules.

By Carlos A. Batara

(Filed Under Q&As: Family-Based Visas And Immigrant Petitions)

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