If your American spouse dies suddenly while you're applying for a marriage green card, or if you're considering applying for a marriage green card after your U.S. citizen spouse's death, it is still possible to get a green card. This article explains provisions in U.S. immigration law that allow U.S. citizen widows and widowers to become lawful permanent residents. We also explain the green card process to follow depending on if you had started the process before your citizen spouse's death and if you're filing from the United States or abroad.
A U.S. citizen’s widow(er) can obtain a marriage-based green card. U.S. Citizenship and Immigration Services (USCIS) is an agency of the Department of Homeland Security (DHS) that processes immigration applications under the Immigration Nationality Act (INA). Before October 2009, USCIS observed “the Widow’s Penalty law.” This law required that widow(er)s must have been married for more than two years before their spouse passed away to apply for a green card. But, the government got rid of the Widow’s Penalty law after deciding that it was unfair to surviving spouses. Now, as long as you meet the normal eligibility requirements for a green card, you can still apply for a marriage-based green card as a widow(er).
You will be eligible to apply for a marriage-based green card as a widow(er) if the following applies to you:
You are admissible to the United States. Some applicants are sometimes “inadmissible” to the United States if they have a certain history of criminal activity or pose a threat to national security.
To obtain permanent resident status, you must have a pending or approved Form I-130 (the “Petition for Alien Relative”) or submit Form I-360 (the “Petition for Amerasian, Widow(er), or Special Immigrant”) within two years after the time of your spouse’s death. If your spouse died before October 28, 2009, and you were married for less than two years, you must have filed one of these forms before October 28, 2011, to qualify for a green card. The application process depends on whether your spouse submitted a Form I-130 petition before their death and whether you’re applying from inside or outside the United States.
If you are applying for a green card from within the United States, you will undergo the Adjustment of Status process. If your now-deceased spouse submitted Form I-130 on your behalf before they passed away, U.S. Citizenship and Immigration Services (USCIS) would automatically convert your Form I-130 into a Form I-360 case. So, you wouldn’t need to resubmit any materials. You would just have to send a letter to USCIS informing them of your spouse’s death.
If your spouse had not yet completed Form I-130 on your behalf before they died, you should submit Form I-360 to USCIS instead. With Form I-360, USCIS will be able to consider your case for a green card as a widow or widower of a U.S. citizen. Form I-360 will specifically ask you whether you have already remarried and whether you were legally separated from your U.S. citizen spouse before they died. If you answer “yes” to either of these questions, you will not be eligible to apply for a green card.
Regardless of which form you initially filed, you will next need to complete and submit Form I-485 or the “Application to Register Permanent Residence or Adjust Status.” In your case, USCIS will usually take between 14-28 months to process Form I-485 and send you a final decision letter notifying you of whether you have an approved petition.
You will be able to check the status of your green card application on USCIS’s website. To use the status tracker, you will have to enter your receipt number (found on the notice that USCIS sends after receiving your application).
If you are applying for a green card from outside of the United States, you will do so through consular processing at your local U.S. embassy or consulate. If your U.S. citizen spouse had already filed Form I-130 on your behalf before their death, U.S. immigration officials would convert your Form I-130 into a Form I-360 petition. If your spouse hadn’t already filed Form I-130, you’ll have to submit Form I-360.
If approved, USCIS will send your application materials to the National Visa Center (NVC), a U.S. Department of State agency. The NVC will contact you to let you know what documentation or fees you must provide. You will then have to complete Form DS-260 or the “Online Immigrant Visa and Alien Registration Application.”
After completing Form DS-260, the NVC will forward your case file to your local U.S. consulate or embassy. Your consulate or embassy will then contact you to schedule a biometrics appointment and an in-person interview.
Before your interview, you must complete a medical examination with a USCIS-approved doctor. You may check your embassy or consulate’s website to see which doctors USCIS approves.
You will present your passport and original documents proving your eligible case for a green card at the interview. A consular officer will ask you questions about your application and then make a decision for your case. Most consular officers make their decisions within a week of the interview.
Once approved by your consular officer, you will receive a U.S. visa, permitting you to travel to the United States. You will also receive a sealed envelope with your case file. You must not open this envelope — a U.S. immigration officer will do so at an official port of entry. After you have formally entered the country, USCIS will mail your green card to your U.S. address. The consular process typically takes about 17-24 months. Once you have your green card, you will have access to several immigration benefits, including working legally in the United States.
If you had already filed Form I-130 before your spouse’s death, you wouldn’t need to pay a fee to convert your Form I-130 into a Form I-360 visa petition. U.S. Citizenship and Immigration Services (USCIS) will do so automatically. The cost to initially file Form I-130 would have been $535.
If you are filing Form I-360 after your U.S. citizen spouse’s death, then you will have to pay a fee of $435. You can pay this fee by money order or check. All checks must be payable to the “U.S. Department of Homeland Security”. If you file at a USCIS lockbox facility, you may choose to pay by credit card. You must use Form G-1450 or the “Authorization for Credit Card Transactions” form to pay by card.
In either case, you will need to pay a separate filing fee for Form I-485 if you are applying for a green card from within the United States. The filing fee for most applicants between 14-78 years of age is $1,140, along with an $85 biometrics fee. Filing fees differ by age range and category, so be sure to check USCIS’s website to calculate the correct filing fees. If you go through the consular process, you will typically pay about $1,200 in fees.
Check out our article for advice on how to afford filing fees for your application.
Applying for a green card can be complicated, but working with a good immigration attorney can make it easier. If you can't afford the attorney fees and don't want to handle your green card case alone, we may be able to help. If you are eligible, our free web app will walk you through the process and help you prepare and file your application with the U.S. government. Click "Get Started" to see how we can help make your American dream come true!