U.S. Citizen Spouse Died: How Do I Get a Green Card on My Own?

If you are a foreign national and were married to a U.S. citizen who died before you were able to get permanent residence in the U.S. (a "green card") through the marriage, you quite possibly can immigrate and get the green card regardless. This article will describe the qualification requirements and steps to take to successfully complete the immigration process.

If Your Deceased U.S. Spouse Filed No Visa Petition for You, Self-Petitioning Is Possible

If your U.S. citizen spouse died before filing a petition on Form I-130 (the normal way to start the green card process), you can potentially file a petition on your own. This way, you would let U.S. Citizenship and Immigration Services (USCIS) know that you were married to a U.S. citizen and that therefore you are eligible for a green card. (See I.N.A. Section 201(b)(2)(A)(i).) There are several requirements, however.

First, you and your deceased U.S. spouse must not have been divorced or legally separated at the time of the death. It's okay if you were living apart; the only thing that matters is that you weren't legally separated, that is, by court order. (A legal separation results when spouses separate and a court rules on the division of property, alimony, child support, custody, and visitation, but does not grant a divorce.)

Second, don't wait too long. You need to file the self-petition (called an "I-360, Petition for Amerasian, Widow(er), or Special Immigrant") within two years of the date your U.S. citizen spouse died. For details and line-by-line instructions on preparing this petition, see Filling Out USCIS Form I-360 Self Petition as a Widow(er) of a U.S. Citizen.

Finally, it's best to file the self-petition before you get remarried, if that might be in your future. If you marry, you won't be able to self-petition on the basis of your marriage to the spouse who died. Of course, if you marry another U.S. citizen, you could have that person petition for you, but you might find it quicker, easier, and less expensive to file a self-petition before getting remarried. And if your new spouse is not a U.S. citizen, you will either have no chance at U.S. immigration or, if your spouse is a U.S. lawful permanent resident, possibly face delays. (See, for example, Married Permanent Resident, Living in the U.S.: When Can I Adjust Status and Get Green Card? and Applying for a Green Card Based on Marriage to a U.S. Permanent Resident: Overview.)

If Your Deceased Spouse Already Filed an "I-130, Petition for Alien Relative" for You

If your spouse filed an I-130 petition for you but died before USCIS could rule on it, or if you had an application for adjustment of status (based on an approved I-130) pending (awaiting USCIS decision) at the time of your spouse's death, USCIS will still go through with your case. (See Applying for Adjustment of Status as the Widow(er) of a U.S. Citizen.)

The same is true if you are overseas and intend to use consular processing to obtain an immigrant visa and green card.

Most Other Green Card Eligibility Requirements Apply to Applicant Whose U.S. Spouse Died

The death of your U.S. citizen spouse doesn't excuse you from satisfying most other U.S. green card eligibility requirements, such as proving that the marriage was real (not a fraud) and that you are admissible to the United States. (See Legal Requirements for a Marriage-Based Visa or Green Card).

One admissibility problem some people face is too many days of "unlawful presence" in the United States. (See Consequences of Unlawful Presence in the U.S.--Three- and Ten-Year Time Bars.) If you were waiting on an I-130 petition approval when your spouse died, you don't acquire any (or any more) days of unlawful presence while you wait for USCIS to rule on your case.

You won't, however, need to worry about inadmissibility based on not having a financial sponsor file a Form I-864 Affidavit of Support on your behalf. Widow(er)s of U.S. citizens are exempt from this requirement, and should indicate this in their application by filing an I-864W.

If You Were Deported From the U.S.

If you are outside the United States because you were deported, but your deceased U.S. citizen spouse had filed an I-130 petition that is still pending at USCIS, you can potentially apply for an immigrant visa (green card) from outside the country. USCIS will let you reapply if:

1. the petition to classify you as a spouse of a deceased U.S. citizen is approved
2. you're otherwise admissible to the U.S., and
3. USCIS decides that your case does not present significant adverse factors, such as a criminal record, national security concerns, or immigration fraud that has not been the subject of a waiver of inadmissibility.

Nevertheless, you would definitely want to seek a lawyer's help with this complex sort of request.

Getting Legal Help

U.S. immigration law is complicated under the best of circumstances, and the death of a U.S. citizen spouse adds another layer; not to mention that it creates a trying time emotionally. Under such circumstances, getting an attorney's help can make your life easier and increase the chances that your U.S. residence application will gain approval.