See1 U.S.C. A .gov website belongs to an official government organization in the United States. August 22, 2022 Yael Brudner The green card process is very complicated and can be challenging if you have a spouse who passed away. to a U.S. citizen, the situation gets a little trickier. Yes No You should submit the following evidence/documentation with your application: You will need to undergo a medical exam to be eligible for adjustment as an immediate relative. Do Not Sell or Share My Personal Information, Immigrants Seeking Visas, Asylum, and Green Cards, Green Cards for Widowed Spouses of U.S. Citizens, I-360, Petition for Amerasian, Widow(er), or Special Immigrant, Applying for Adjustment of Status as the Widow(er) of a U.S. Citizen, Legal Requirements for a Marriage-Based Visa or Green Card, Consequences of Unlawful Presence in the U.S.--Three- and Ten-Year Time Bars, Do Not Sell or Share My Personal Information, the petition to classify you as a spouse of a deceased U.S. citizen is approved, you're otherwise admissible to the U.S., and. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. Eligible relatives include a spouse, son or daughter (aged 18 or older), parent, mother-in-law, father-in-law, sibling, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild (age 18 or older). A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. Citizen."). SeeINA 213A. 1 USCIS-PM - Volume 1 - General Policies and Procedures, 7 USCIS-PM - Volume 7 - Adjustment of Status, 9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief, 10 USCIS-PM - Volume 10 - Employment Authorization, 11 USCIS-PM - Volume 11 - Travel and Identity Documents, 12 USCIS-PM - Volume 12 - Citizenship and Naturalization. See Part D, General Naturalization Requirements, Chapter 3, Continuous Residence [12 USCIS-PM D.3]. [^ 18] For information on how to request humanitarian reinstatement, see the Humanitarian Reinstatement webpage. [29] Theofficer may grant an eligible applicant permanent residence without conditions ifthe officer determines the marriage was bona fide and entered into in good faith while the qualifying relative was alive. That means you could face a wait for an available immigrant visa (a green card, or U.S. lawful permanent residence), owing to annual limits on . SeeMatter of Da Silva, 15 I&N Dec 778 (BIA 1976);Matter ofZappia, 12 I&N Dec. 439 (BIA 1967);Matter ofHirabayashi, 10 I&N Dec 722 (BIA 1964);Matter of M, 3 I&N Dec. 465 (BIA 1948). See Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act, PM-602-0017 (PDF, 1.13 MB), issued December 16, 2010. In cases of polygamy, only the first spouse may qualify as a spouse for immigration. There are provisions in United States immigration laws that allow widows and widowers to become permanent residents. [^ 4] See USCIS Policy Alert, Defining Residence in Statutory Provisions Related to Citizenship [PA-2019-05] (PDF, 308.45 KB). To qualify, you must not have been divorced or legally separated from the U.S. citizen at the time of death. In some cases, applying for and getting a green card may still be possible. . We've helped 85 clients find attorneys today. [2] This provision gave noncitizens the ability to seek an immigration benefit through a deceased qualifying relative in certain circumstances. If your spouse died before filing any petition to start the green card process, you can file a petition on your own to let U.S. Some waivers require a showing of extreme hardship to a qualifying relative, who must be either a U.S. citizen orlawful permanent resident (LPR). 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. A finding of extreme hardship permits, but does not compel, a favorable exercise of discretion. In contrast, the effect of a judicial divorce is to terminate the status as of the date on which the court entered the final decree of divorce. Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. In many instances, spouses will separate without obtaining a judicial order altering the marital relationship or formalizing the separation. [^ 22]See8 CFR 319.1(b)(2)(i). 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. [20], In all cases where it is applicable, the burden is on the applicant to establish that he or she has lived in marital union with his or her U.S. citizen spouse for the requiredperiod of time. INA 204(l) does not limit or waive any other eligibility requirements or adjustment bars that apply, other than the requirement for a petitioner or principal beneficiary. "The adjustment applicant is eligible for a waiver of certain requirements for CPR on account of the marriage termination due to death." Terms of Use, Although Congress did not expressly define qualifying relative in this situation, it did provide a list of those who may continue to seek an immigration benefit through the qualifying relative. If you were married to a U.S. citizen who had filed Form I-130, Petition for Alien Relative for you before he or she died, you do not need to file anything. You may file Form I-485, Application to Register Permanent Residence or Adjust Status, either at the same time you file your Form I-360 or after you file the Form I-360 whether it is pending or approved. [10], The validity of a divorce abroad depends on the interpretation of the divorce laws of the foreign country that granted the divorce and the reciprocity laws in the state of the United States where the applicant remarried. SeeMatter of Hosseinian, 19 I& N Dec. 453 (BIA 1987). [^ 6] Immediate relatives includes widow(er)s, who may also seek relief as self-petitioners. USCIS is issuing updated and comprehensive citizenship and naturalization policy guidance in the new USCIS Policy Manual. SeeMatter ofMiraldo, 14 I&N Dec. 704 (BIA 1974). Official websites use .gov You'll need a lawyer's help to present compelling evidence of why your approval should be granted. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. The spouse of a U.S. citizen has the most options of anyone after the U.S. citizen petitioner dies, including filing a "self petition" or seeking an alternate form of relief under Section 204 (l) of the U.S. immigration law. The applicant and his or her former spouses place of domicile at the time of the divorce is important in determining whether the court had jurisdiction. The attorney can determine whether you are still eligible for a green card and guide you in a timely manner through the appropriate application process. [^ 33]See Section B, Effect on Adjustment Application, Subsection 1, Admissibility and Waivers [7 USCIS-PM A.9(B)(1)]. (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.). If you already filed Form I-485 based on the petition filed by your spouse, USCIS will continue to process this application and you do not need to file another one. [^ 11]SeeMatter of Luna, 18 I&N Dec. 385 (BIA 1983). [1] In 2009, Congress addressed this scenario with a new statutory provision,INA 204(l). Anapplicant who is no longer actually residing withhis or her U.S. citizen spouse following an informal separation is not living in marital union with the U.S. citizen spouse. Factors to consider in making this determination may include: Whether the applicant and his or her spouse continue to support each other and their children (if any) during the separation; Whether the spouses intend to separate permanently; and, Whether either spouse becomes involved in a relationship with others during the separation. In these cases, if the Affidavit of Support has not been filed but is required, then the original petitioner must still file an Affidavit of Support for the derivative applicants to be able to adjust. An applicant is ineligible to naturalize as the spouse of a U.S. citizen if the U.S. citizen has expatriated any time prior to the applicant taking the Oath of Allegiance for naturalization.[27]. As immediate relatives, your derivative children are granted benefits of the Child Status Protection Act, which freezes their ages as of the date of the principals filing of Form I-130 or I-360, whichever is applicable. Other states may recognize a common law marriage contracted in another state even if the recognizing state does not accept common law marriage as a means for its own residents to contract marriage. After the visa process has been completed, and the visa is issued, the spouse can travel to the United States to wait for the processing of the immigrant visa case. SeeINA 337. [^ 9]Prior to the Supreme Court decision,United States v. Windsor, USCIS did not recognize relationships between two persons of the same sex as marriages or intended marriages in accordance with section 3 of DOMA. SeeINA 204(a)(1)(A)(iii)(II)andINA 319(a). If the petitioner dies, the applicant typically must obtain a substitute sponsor to continue to be eligible for adjustment of status. Secure .gov websites use HTTPS If your U.S. citizen spouse dies while your alien relative petition (Form I-130) had already been filed with the USCIS, then you should not do any additional paperwork. However, note that battered spouses who had a bigamous marriage may still be eligible for naturalization. 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. The applicant should present new evidence, including: Proof that the applicant was residing in the United States when the relative died; and. Book a consultation and start your immigration process now! [^ 20]See8 CFR 319.1(b)(2)(ii)(C)andguidance below on Involuntary Separation under the paragraph Failure to be Living in Marital Union due to Separation.See Volume 12, Citizenship andNaturalization, Part G, Spouses of U.S. Citizens, Chapter 2, Marriage and Marital Union for Naturalization,Section 3, Failure to be Living In Marital Union due to Separation [12 USCIS-PM G.2(D)(3)]. [27] The conduct that made the applicant inadmissible is itself an adverse factor. A portion of the Immigration and Nationality Act . See INA 316(a). Even thoughINA 204(l)does not impact adjustment requirements related to admissibility and waivers, the provision does remove ineligibility based solely on the lack of a qualifying family relationship. Since INA 204(l) affects not only the visa petition and adjustment application but also any related application, USCIS has determined that INA 204(l) provides the discretion to grant a waiver or other form of relief from inadmissibility to a qualifying applicant, even if thequalifying relationship that would have supported the waiver has ended through death. The parties must meet the qualifications for common law marriage for that jurisdiction. However, if the U.S. citizen spouse and the applicant continue to reside in the same household, an officer must determine on a case-by-case basis whether an informal separation before the filing of the naturalization application renders an applicant ineligible for naturalization as the spouse of a U.S. Book a Consultation . And, the sponsor must be a relative of the immigrant's. 1 USCIS-PM - Volume 1 - General Policies and Procedures, 7 USCIS-PM - Volume 7 - Adjustment of Status, 9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief, 10 USCIS-PM - Volume 10 - Employment Authorization, 11 USCIS-PM - Volume 11 - Travel and Identity Documents, 12 USCIS-PM - Volume 12 - Citizenship and Naturalization. Your success depends on your deceased relative's immigration status in the U.S., your relationship to that person, where you currently live, and whether you have relatives in the United States who are willing to serve as financial sponsors for you. A substitute sponsor is needed even if the deceased petitioner has completed the Affidavit of Support. A beneficiary of a pending Form I-730 petition who resides in the United States when the petitioner dies may remain eligible for follow-to-join status under INA 204(l). Effective October 29, 2019, USCIS amended its policy guidance to address these concerns, and determined that children of members of the U.S. armed forces or U.S. government employees stationed outside of the United States would not be eligible for citizenship acquisition under INA 320.[4]. 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. [16] In order for a common law marriage to be valid for immigration purposes: The parties must live in that jurisdiction; and. Official websites use .gov Until Oct. 28, 2009, you had to have been married to the deceased citizen for at least two years at the time of the deceased citizens death, in order to immigrate as the widow(er) of a citizen. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to clarify the marriage and living in marital union requirements under section 319(a) of the Immigration and Nationality Act (INA). Review our. Further, the statutory definition of residence does not require the applicant to show that his or her presence in the United States is lawful. [^ 26]SeeMatter of Luna, 18 I&N Dec. 385 (BIA 1983). For further information, see the Work Authorizationand Travel Documentspages. See How to File an I-360 "Special Immigrant" Green Card Petition.
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