What If Your Spouse Dies Before You Get Your Green Card?

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If you are applying for a green card based on marriage to a U.S. citizen or lawful permanent resident, the last thing you probably want to think about is the possibility that your U.S. petitioner will pass away unexpectedly before you have finished the green card application process. Although it would be a tragedy, it might ruin your ability to get a U.S. green card (lawful permanent residence), as described below.

When a U.S. Citizen Spouse/Petitioner Dies

In 2009, Congress changed the law to allow the surviving spouse of a U.S. citizen to petition for him- or herself, regardless of the length of the marriage prior to the spouse’s death. This changed the old law, which had required the couple to have been married for at least two years at the time the U.S. citizen died in order for the surviving spouse to self-petition.

If you find yourself in this position, make sure you file your self-petition within two years of your U.S. citizen spouse’s death (unless your spouse died before the passage of this new law—October 28, 2009—in which case, your petition should have been filed within two years of the new law, that is, by October 28, 2011).

You may include your children who are under 21 years old on the petition. You will still have to show that you and your spouse had a bona fide marriage, and that you have not remarried.

When a U.S. Permanent Resident Spouse/Petitioner Dies

If you are the spouse of a deceased lawful permanent resident, you cannot self-petition the way the spouse of a deceased U.S. citizen can, but there are some other “survivor benefits” in the immigration law that might help you.

If your deceased spouse filed a visa petition for you (on Form I-130), you (and your children) may be able to adjust status once your Priority Date becomes current, despite the death of your spouse. If you are outside the country, under certain conditions USCIS may grant “humanitarian reinstatement” of the visa petition and may allow you to get your immigrant visa through consular processing.

Consult an immigration attorney for help and the latest information.

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LA-NOLO2:DRU.1.6.3.20141021.28794