If you are the widow(er) of a U.S. citizen as defined in immigration law, you may be eligible to apply for a green card. To get a green card under this family category, you must also prove you were married to the U.S. citizen at the time of their death and that it was a bonafide marriage not for the sole purpose of gaining an immigration benefit. You may be eligible if you are the:
- Widow(er) without a pending or approved petition
- Widow(er) with a pending or approved petition
- Widow(er) of a U.S. military member
You must also:
- File I-360 petition within 2 years of your spouse’s death (or no later than Oct. 28, 2011, if your citizen spouse died before Oct. 28, 2009, and you were married less than 2 years).
- Not be remarried
- Be legally married at the time of U.S. citizen spouse’s death
- Enter into the marriage in goof faith
- Are admissible to the United States
As a widower, you can self petition for a green card or if a petition is currently pending it will automatically be changed to the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
Whether filed through self-petition or converted to the Form I-360 after your spouse’s death, you must prove eligibility by attaching required documentation and evidence of the valid and legal marriage and that this marriage was entered in good faith. Any follow up action on the application depends on where you are and other eligibility criteria.
Adjustment of Status Process
If you are located in the United States, you may be able to submit an adjustment of status application. Generally, this involves submitting the petition and the adjustment of status application, attending a biometrics appointment and then the final interview some months or years later.
Before applying for the green card through the adjustment of status process you should make sure that this is the right process for you. For instance, you should make sure there are no bars to an adjustment of status and no admissibility issues. You should also consider applying for employment authorization and advanced parole. Advanced parole will allow you to travel outside of the United States during the adjustment of status application process. Each of the pieces of this process can get complicated. If you miss something or make mistakes, it could mean a delayed process or even a denial. It is important to tread carefully and be meticulous through this process.
If you are outside of the United States, and the USCIS approves the petition, you will go through consular processing and a final interview at the embassy in your home country. Generally, your relative will submit the petition at the USCIS. If approved, the USCIS sends the approved petition to the National Visa Center. The National Visa Center then corresponds with you to provide documentation, fee payments and to complete the DS-260 immigrant visa application. Then the embassy in your home country schedules the final interview and provides you instructions to do the medical examination and obtain a police certificate in your country. The officer will review all documentation and your application at the final interview and inform you of the decision at the interview.
When considering whether to go through with this type of green card application, it is important to take other circumstances and factors into consideration. Failing to do this may cause complications in the application process. For instance, any facts that involve previous denials, past immigration and criminal violations, previous marriages that involved filings, entry with other types of visas, tax issues, visa overstays, and previous employment in the United States can be just as important as the basic eligibility criteria. A single criminal violation, whether a misdemeanor or more serious, can lead you to be inadmissible to the United States, which may require additional steps to get a green card, such as a waiver.
It is important to consult an experienced immigration attorney to assist you with your case. An attorney will help to guide you through preparing the petition, assist with gathering evidence, and advocate vigorously for you during the process. Here at ST Law Office, I have dedicated my practice solely to immigration matters. I vigorously advocate no matter how simple or complicated the matter. Don’t hesitate to call us at 561-405-4889 or to schedule your initial phone, online or in-person consultation now.