Applying for Adjustment of Status as the Widow(er) of a U.S. Citizen

If you are a foreign national whose U.S. citizen spouse has died, and you were planning to get U.S. lawful permanent residence (a green card) through your spouse, here's some reassurance: It is still possible to gain U.S. permanent residence through the process known as "adjustment of status," without leaving the country. See U.S. Citizen Spouse Died: How Do I Get a Green Card on My Own? for a discussion of who is eligible for a green card via this method.

This article will focus on the nuts and bolts of the application process for obtaining that green card while living in the United States.

Eligibility to Adjust Status in the U.S.

There are certain requirements for who can adjust status in the United States, and those don't change even if the U.S. petitioning spouse has died. (See Who Can Apply for a Green Card Through Adjustment of Status.)

One of those requirements is that U.S. Citizenship and Immigration Services (USCIS) approve a petition classifying you as the spouse of a U.S. citizen. This may be either a petition that was already filed by your spouse (Form I-130 for spouses or Form I-129F for fiancés) or one that you file on your own (Form I-360), as described next. In either case, however, you will need to show that you were indeed married to a U.S. citizen.

Proving to USCIS That You Were Married to a U.S. Citizen Who Passed Away

When and how you'll prove your U.S. spouse's status as a citizen depends on which petition you'll be filing or has already been filed for you.

If your spouse filed an I-130, Petition for Alien Relative for you before dying, the agency will normally (whether it's been approved or not yet), convert it to an I-360, Petition for Amerasian, Widow(er), or Special Immigrant upon learning of the spouse's death. (This latter petition is used by and for many types of people; in your case, it's for a "widow(er).")

In this situation, you'll want to let USCIS know about your spouse's death by sending a letter to the office handling the I-130 petition, along with a copy of the death certificate. You won't need to do anything else. If the I-130 petition has already been or is ultimately approved by USCIS (see Eligibility for a Green Card as the Widow(er) of a U.S. Citizen), you have satisfied the requirement of having an approved visa petition.

If USCIS had already approved the I-130 petition and you were already in the process of applying for adjustment of status when your spouse died, USCIS will continue to process your adjustment of status application and you do not need to file another one.

If your spouse did not file an I-130 petition for you before dying, you will need to get an I-360 petition filed with and approved by USCIS. For help, see Filling Out USCIS Form I-360 Self Petition as a Widow(er) of a U.S. Citizen. You must file the I-360 no more than two years after the death of your spouse, and you must not remarry.

To accompany your I-360, you'll need to supply:

• A copy of proof that your spouse was a U.S. citizen, such as a U.S. birth certificate, Naturalization Certificate, Certificate of Citizenship from USCIS, Form FS-240, Report of Birth Abroad of a Citizen of the United States, or a U.S. passport that was valid at the time of death
• A copy of your marriage certificate to the U.S. citizen and copies of proof that any prior marriages (yours or your spouse's) ended before your marriage (such as death or divorce certificates), and
• copy of the death certificate for your U.S. citizen spouse.

You can file the I-360 petition either before or at the same time as your adjustment of status application. If you're eligible to adjust status right now, it's easier to file the I-360 and adjustment application together.

Preparing and Submitting the Adjustment of Status Application

As the widow or widower of a U.S. citizen, you can apply for adjustment of status by preparing Form I-485, Application to Register Permanent Residence or Adjust Status," as well as supporting forms and documents. The process is the same as it is for all other people who are applying for adjustment of status, with one important exception.

You (and any of your children adjusting status with you) are not required to submit "Form I-864, Affidavit of Support." This is a form that the person who petitioned for an immigrant usually must fill out and supply to the U.S. government, promising to support the immigrant financially in case the immigrant can't be self-supporting. In your case, the government knows that you petitioned for yourself, and it won't require you to prove you can support yourself.

Instead, however, you should file a Form I-864W, showing that you're exempt from this requirement.

If You Have a "K-1" Fiancé(e) Visa

If you originally entered the U.S. when unmarried, on a K-1 fiancé(e) visa, then when you got that visa, you were supposed to marry your spouse within 90 days of coming to the United States. If you did that, and then your spouse died, you can still adjust status.

You don't need to file any special form. On the I-485 adjustment of status application in Part 2, you place a check in the third box under 1.a, "admitted to the U.S. as a fiancé(e) ..."

If your fiancé(e) died before you were able to marry, you cannot adjust status, because you were never the spouse of a U.S. citizen. Also, if you stay in the U.S. and marry someone else, you can't adjust your status based on that marriage. The rules say that K-1 visa holders can't adjust status as the spouse of anyone except the person who petitioned for the K-1 visa. So if you remarry, you will have leave the U.S. and get your immigrant visa through a U.S. consulate in your home country.

Getting Legal Help

With all that you're dealing with right now, and the high stakes of getting this application done correctly, it could be well worth consulting an experienced attorney. The attorney can make sure you're still eligible for a U.S. green card, prepare the forms and help assemble the documents, help strategize over any problem spots in your case, and monitor the application until it's approved.