In March 2022, David J. Bier, associate director of immigration studies at the Cato Institute, wrote an article titled, “1.6 Million Family‐Sponsored Immigrants Will Die Before They Can Immigrate.” Needless to say, many families are affected.
This begs the question: what happens to those left behind? More specifically, if a spouse who is already a US citizen dies while sponsoring their partner, what happens to the widow or widower’s green card application?
The Widow’s Penalty
The first thing that comes to mind in a situation like this might be the widow’s penalty, which only permits widows and widowers to apply for a green card if they had been married for at least two years before their spouse’s death.
However, this requirement has been removed. Now, bereaved spouses can continue applying for permanent residence no matter how long they were married or if they were living in the US when their spouse passed away.
While this change is helpful, it applies only to applicants whose spouses were already US citizens.
The I-360 Petition is for Amerasians, widow(er)s of American citizens and special immigrants. It informs the U.S. Citizenship and Immigration Services (USCIS) that a person was married to a US citizen who recently died and that they are interested in pursuing a green card based on that marriage. However, by necessity, it can be completed without the spouse’s help.
There are a few tips and rules to keep in mind while you organize your petition. They include:
- Remember to sign the forms. If forms are submitted unsigned, they will be rejected and returned.
- Use the most up-to-date version of all documents and application papers.
- Forms can be downloaded, completed electronically and printed for submission. This ensures the information is legible.
- Use black ink if you hand-write your answers. Keep the entries neat, clear and within the space provided.
- Do not use highlighters, correction fluid or tape. Scanners can’t read information that has been grayed out, highlighted or altered with correction fluid or tape.
- Start over with a clean form if you make a mistake.
- If you file multiple forms, write your name and date of birth the same way on each paper.
- Pay the correct fee. Applications submitted with incorrect or incomplete fees will be rejected.
- Send single-sided copies of the application(s).
Along with the petition, you must provide:
- Proof of your late spouse’s US citizenship;
- A copy of your marriage certificate to your late spouse;
- Proof you or your late spouse terminated any prior marriages (if applicable); and
- A copy of your late spouse’s death certificate.
If a Petition for a Foreign Relative Was in Progress
If a US citizen spouse dies after filing an alien relative petition (Form I-130) with the USCIS, then it is best to notify the USCIS of their death. In these cases, a simple request to convert Form I-130 to Form I-360 should suffice. This applies whether or not the I-130 had been approved.
If the US spouse had not yet filed an I-130 Form, the widow or widower would need to file a self-petition within two years of their spouse’s death. Unmarried children and children under the age of 21 are included in the petition. Keep in mind that this would no longer be an option if the spouses had separated or divorced.
US Immigration Lawyer in Montreal
This article offers an overview of what can be done in the case of spousal death. A skilled and experienced immigration lawyer can guide you through the process, avoiding lengthy waits and costly mistakes.