Widowed Before Green Card: I-360 Widow Petition.

Under federal law, 8 U.S.C. § 1151(b)(2)(A)(i) (INA § 201(b)(2)(A)(i)) provides the statutory basis for classifying an eligible surviving spouse of a U.S. citizen as an immediate relative. Under this provision, a surviving spouse who had filed an I-130 immigrant petition prior to the U.S. citizen’s death, or who is otherwise eligible for immigration benefits based on marriage to a U.S. citizen, can seek protection through what is commonly referred to as a “widow(er)” petition.

Requirements for a Widow(er) Petition

To qualify for the protections and potential benefits of an I-360 widow(er) petition, the surviving spouse must generally satisfy several key requirements:

• Legally Married at Time of Death: The surviving spouse and the deceased U.S. citizen must have been lawfully married for at least two years at the time of the citizen’s death.
• No Termination of the Marriage: The couple must not have been divorced or otherwise lawfully separated at the time of the citizen’s death.
• Good Faith Marriage: The marriage must have been entered into in good faith, and not for the purpose of evading immigration law or for other improper purposes.
• Remaining Unmarried: In most cases, the surviving spouse must remain unmarried to continue seeking immigration benefits under the widow(er) provision. If the surviving spouse remarries, they generally lose their eligibility to pursue benefits as a widow(er).

Filing Form I-360 as a Surviving Spouse

When these requirements are met, the surviving spouse can file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, to pursue residency (a green card). The I-360 petition serves as the official mechanism for recognizing the surviving spouse’s claim to benefits based on their marriage to a deceased U.S. citizen.

Are There Other Hurdles in Pursuing the Widow(er) Petition?

While meeting the eligibility requirements for filing Form I-360 is a critical first step, filing the petition does not automatically guarantee immigration benefits. All applicants must still establish admissibility under federal law or eligibility for an available waiver or other relief. For those with criminal convictions or other admissibility issues, additional legal steps may be necessary to pursue a green card.

How Does a Widow(er) Case Move from an I-130 or I-360 to a Green Card?

An immigrant spouse who has a pending or approved I-130 immigrant petition may be able to convert this into an I-360 petition if the U.S. citizen dies. This is one potential path for surviving spouses. After the conversion (if applicable), the survivor proceeds toward obtaining their green card.

To request this conversion, the surviving spouse must generally send a copy of the U.S. citizen’s death certificate and written notification to USCIS. While the conversion of an eligible I-130 is described by USCIS as being automatic, surviving spouses must still satisfy the requirements for an approved I-360 petition.

Eligible widow(er) applicants may include their qualifying unmarried children in the petition as well. Children’s eligibility depends on the specific requirements for the category. Generally, the child’s relevant age is measured when the I-130 (if converted) or I-360 petition is filed.

Once an eligible widow(er) has a status that allows them to apply for a green card, the next step is often filing Form I-485 to apply for adjustment of status. In order to file Form I-485 based on an approved I-360 petition, the surviving spouse must meet all federal requirements. Generally, this includes:

• Having been inspected and admitted or paroled into the United States and satisfying the applicable adjustment-of-status requirements
• Having no inadmissible criminal history (or obtaining a waiver for an inadmissible criminal history)
• Not being inadmissible for any other grounds

Given these requirements, pursuing adjustment of status based on an approved I-360 petition is a complex process that can lead to a successful outcome for those who are eligible. Surviving spouses must be mindful of all applicable rules and regulations, including ensuring that all filings are timely and required evidence is included. Working with an immigration attorney can be important to help navigate this nuanced process and to better your chances of approval. If you have concerns about potential inadmissibility or any other legal or immigration issues, an experienced attorney can help you determine your next steps and help protect your future and your family’s future in the United States.

Which Inadmissibility and Removal Issues Can Derail a Widow(er) Case?

Even if a surviving spouse satisfies the eligibility requirements for the widow(er) immigrant petition or the conversion of their (or their deceased spouse’s) I-130 immigrant petition to an I-360 immigrant petition, they must still establish admissibility to the United States. The I-360 immigrant petition process has various potential obstacles, and an immigrant spouse can face a variety of inadmissibility and removal issues. Some of these issues include (but are not limited to):

• Medical Exams and Vaccinations, As with other applications for lawful permanent residency, widow(er) applicants must complete the required medical examinations and vaccinations.
• Unlawful-Presence Inadmissibility Bars, The widow(er) immigrant petition is an exception to the general rule that spouse, parent, or child relationships end upon the death of a U.S. citizen. However, it is not an exception to the rule that an individual must not have unlawfully present in the United States to be admissible. As a result, an individual may not be eligible to apply for a green card due to a prior unlawfully present state even if they qualify for an I-360 immigrant petition.
• Unlawful-Presence Waivers, If they are ineligible to pursue a green card due to unlawfully present inadmissibility, an individual may be able to apply for a waiver. However, waivers are not guaranteed and require significant evidence to demonstrate eligibility.
• Exemptions and Waivers, In addition to eligibility for the I-360 immigrant petition or the unlawful-presence waiver, the widow(er) exemption also does not waive other permanent residence requirements, including (but not limited to):
• Prior Deformations and Discrepancies, Applicants with prior deformations and discrepancies (e.g., having overstayed their visa, never having a valid status in the U.S., etc.) must also prove to USCIS that they are otherwise eligible to apply for a green card.
• Risk of Removal Proceedings, When an application for lawful status is denied, some applicants face the risk of removal proceedings. This is particularly true when the individual is an unlawful immigrant and did not maintain status under a different provision of immigration law. As a result, when an I-360 immigrant petition is denied, applicants should not make light of the possibility of facing removal proceedings.

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What Do Widow(er) I-360 Fees and Processing Times Actually Look Like?

When applying for a green card as a surviving spouse, there is no single figure representing the total cost. The process can involve multiple expenses that vary depending on the applicant’s specific circumstances. At Spodek Law Group, we provide tailored evaluations to identify the relevant costs for each client.

The filing fee for Form I-360 differs among the petition categories. While applicants pursuing a green card under VAWA’s protections generally do not pay a filing fee, those who are filing an I-360 petition as a surviving spouse must pay a filing fee.

Attorney fees for immigrant petitions to seek a green card will depend on a variety of factors that will vary from case to case. After you speak with our immigration attorneys, they will be able to determine your eligibility to pursue a green card and advise you on the next steps. The attorney’s fee for your case will depend on your individual situation and the steps involved in pursuing your green card application.

Applicants who meet the appropriate criteria to qualify for a fee waiver can file Form I-912. In order to qualify for a fee waiver, applicants generally must meet financial-related eligibility requirements based on family size, income levels, and household costs. For a fee waiver to be approved, an applicant must be unable to pay the fee without compromising their or their family’s ability to meet basic financial needs.

Current estimates from the federal government suggest that processing times for widow(er) I-360 immigrant petitions vary from 7.5 to 32 months. This provides a broad estimate, with factors such as applicants’ needs for verification affecting duration. The wide range also reflects a substantial variability in processing time between different locations and the complexity of the applicant’s situation.

Why Is Form I-360 Different in VAWA Self-Petition Cases?

Form I-360 is the form used in various immigration benefit applications. For immigration law, this is not just because the same form can represent different forms of immigration status, but also because these statuses have various similarities. Although both VAWA self-petitions and widow(er) petitions use Form I-360, they arise under different provisions of the Immigration and Nationality Act.

Both VAWA and widow(er) petitions are used to secure an eligible applicant’s residence status without relying on the affected person’s assistance. As a result, theVAWA self-petition process and the widow(er) immigration petition process can be similar to many respects. However, they also have various differences as well.

A VAWA self-petitioner may be an abused spouse, parent, or child. This differs from the widow(er) petition, which requires the individual to be the surviving spouse of a U.S. citizen. Additionally, other requirements differ as well. For example, VAWA applicants must generally establish that they were subject to battery or extreme cruelty by their spouse, parent, or child. All VAWA applicants must also establish good moral character.

Among the VAWA eligibility requirements is showing a good-faith marriage. VAWA spouses must demonstrate that they entered the marriage in good faith and satisfy the other applicable VAWA eligibility requirements. These are different from the widow(er) requirements for pursuing a green card, and these VAWA-specific eligibility requirements apply to other types of immigration petitions as well.

To further protect self-petitioners, VAWA offers protections such as confidentiality and filing-fee exemptions for qualifying filings. This makes the VAWA process different from the widow(er) process. If you need to pursue a VAWA self-petition, our team can determine the next steps to take and help you secure your residence status.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028 to speak with our team.