My U.S. Citizen Spouse Passed Away: Am I Able to Self-Petition for a U.S. Green Card?

Select foreigners can continue seeking U.S. lawful permanent residence after the death of their petitioning U.S. citizen spouse.

Once you were married to a U.S. citizen who died before you were able to obtain an LPR status in the U.S. through marriage, there might be a possibility that you can get a green card anyway.

There is a possibility that You Can Petition for an Immigrant Visa Yourself if Your Spouse Did Not Start the Application Process

There have been instances where the U.S. citizen died before filing a Form I-130, Petition for Alien Relative to start the green card procedure for his or her spouse. There is hope because you can potentially submit a petition on your own but with the help of an immigration attorney. In this instance when you apply for a green card you would need to notify U.S Citizenship and Immigration Services (USCIS) that you were married to a U.S. citizen and that you qualify for a U.S. green card.

You must first prove to USCIS that you and your deceased spouse were never divorced or legally separated at the time of death. When there is a legal separation spouses are separated and a court rules on the division of property, alimony, child support, custody, and visitation but does not grant a divorce.

Secondly, do not hesitate to file a self-petition, I-360, Petition for Amerasian, Widow(er), or Special Immigrant within two years of the date your beloved spouse passes away.

Lastly, it would be better to submit the self-petition before getting remarried, if that is what you plan for your future. Now, if you remarry, you will not be able to file a self-petition based on your prior marriage to the spouse who died. Of course, if you marry another U.S. citizen, your new spouse can then petition on your behalf, but it might be quicker, less difficult, and more affordable to file a self-petition before getting married. And if your new spouse is not a U.S. citizen, you will either have delays in your immigration application or no chance at all of obtaining a U.S. immigration benefit.

Your U.S. Spouse Filed an I-130, Petition for Alien Relative on Your Behalf

Let’s say your spouse did file an I-130 Petition for you before he or she died while it was still pending with USCIS or you were still awaiting an application for adjustment of status (based on an approved I-130) at the time of your spouse’s death, USCIS will still follow through with your application.

It is the same if you are overseas and intend to use consular processing to acquire an immigrant visa or U.S. green card.

Other U.S. Green Card Eligibility Stipulations are Applicable to Applicants

The passing away of your spouse does not excuse you from satisfying most of the other U.S. green card eligibility requirements such as demonstrating that the marriage was real (not fraud) and that you are inadmissible to the U.S. Talk to an immigration lawyer about the eligibility requirements.

Have an Immigration Attorney Represent You

U.S. immigration laws are complex under the best circumstances, and the death of a U.S. citizen spouse adds another challenge, not to mention that it is emotionally overwhelming. Under such situations, it is advised to retain the services of an immigration law firm. Here at Gambacorta Law Office, we will provide you with the necessary tools to help you obtain green card approval. Do not hesitate to contact us at 847 443 9303 for your first free consultation.