Recently, I have been receiving a good number of inquiries regarding immigration petitions filed by deceased spouses. Normally, according to U.S. Immigration, death of the petitioner means death of the petition. The good news is that this mantra does not apply to widows or widowers of an U.S. Citizen. For more information on rights of the widows(ers) please see sections 201(b)(2)(A)(i) and 204(a)(1)(A) of the Immigration Nationality Act (INA) and 8 CFR 204.2(i)(1)(iv) and 245.
Widows or widowers who are married to U.S. citizens at the time of death can apply for a green card. If the widow or widower and the U.S. citizen spouse has filed an I-130 (Petition for Alien Relative) then no actions need to be taken and the I-130 will automatically convert to an I-360 (Petition for a Amerasian, Widow(er) or Special Immigrant). The widower can also include their children in the petition regardless whether the deceased spouse had filed a petition.
If there are no existing prior petitions filed by the deceased spouse, the widow or widower can file a self petition as an “immediate relative” via Form I-360 (Petition for a Amerasian, Widow(er) or Special Immigrant). To qualify, the self petitioner must not have been divorced or legally separated from the U.S. citizen at the time of death. If the citizen spouse did not have a pending I-130, then the widow or widower must file a I-360 no more than 2 years after death of U.S. citizen spouse.
Unmarried children of the widow or widower, under the age of 21, may be included on the immigration petitioner filed by the widow or widower. Derivative children of the “immediate relatives” enjoy the benefit of the Child Status Protection Act, which “freezes” the derivative’s age as of the date of the principal’s filing of Form I-130 or I-360. The purpose is to protect the derivatives from aging out if they turn 21 prior to adjudication of their adjustment-of-status or visa application.
