Immigration to the US as the widow/er of a US Citizen

Following the passage of Public Law 111-83 through Congress in 2009, a widow/er who was married to a US citizen at the time of their death no longer needs to have been married for at least two years in order to be able to immigrate to the United States on that basis. The so-called "widow penalty" was ended upon enactment of that law.

I. Eligibility for Adjustment of Status as a Widow/er of a US Citizen

You are eligible to file for adjustment of status as a widow/er if all of the following are true:

(1) You were legally married to someone who was a US citizen at the time of their death;

(2) You can prove that the marriage was bona fide and was not entered into solely to confer immigration benefits on the alien;

(3) You entered the United States legally (with inspection).
     Note: You can still file even if out of status, as widow/ers remain immediate relatives of a US citizen and so any overstay is not penalised at the time of adjudication;

(4) You were not legally separated from your US citizen spouse at the time of their death;

(5) You have not remarried;

(6) You are filing within two years of the death of your US citizen spouse.
     Note: Your application does not need to be adjudicated within two years of the spouse's death, but you must have filed within two years of the spouse's death.

II. Required Forms

 You must download and complete an I-360 (https://www.uscis.gov/i-360), Petition for Amerasian, Widow(er), or Special Immigrant, as well as an I-485 (https://www.uscis.gov/i-485), Application to Register Permanent Residence or Adjust Status.

 Usually, immigrants are required to provide an Affidavit of Support (using an I-864) to show that they have a financial sponsor within the US. Widow/ers though, are exempt from this requirement. A widow/er seeking permanent residency need only provide an I-864W ("waiver") (https://www.uscis.gov/i-864w) to show that they are not required to file an I-864.

 You must also complete two copies of a G-325A (https://www.uscis.gov/g-325a), Biographic Information (one to support the I-360 and the other to support the I-485).

 You also need to enclose a sealed I-693 (https://www.uscis.gov/i-693), Report of Medical Examination and Vaccination Record, completed by a civil surgeon. You can find a list of civil surgeons near your location by entering your zip code into https://egov.uscis.g...ffice_type=CIV.

III. Optional Forms

There are two optional forms that you should consider filing at the same time. These are:

 I-765 (https://www.uscis.gov/i-765), Application for Employment Authorization
 I-131 (https://www.uscis.gov/i-131), Application for Travel Document.

Applying for an Employment Authorization Document on an I-765 will allow you to work legally until your adjustment of status application is finally adjudicated. As part of this, if you do not already have a social security number then you can present your EAD to your local Social Security Administration office, together with a completed application for a social security card, and you will receive your card and number in the mail a week or two later.

Applying for Advance Parole using an I-131 is sometimes more tricky. It will allow you to depart and re-enter the United States while your applications are pending, but it will not overcome any overstay bars you have if you have been illegally present in the United States for at least 180 days. 180 days of illegal overstay gives a three year bar, and 365 days of overstay gives you a ten year bar. These bars are only triggered upon departing the United States, so if you have at least 180 days of overstay then you should not apply for an I-131, and simply wait until your green card is in your hands. If you have no overstay issues then you should be fine to leave and re-enter the US using your Advance Parole until your applications are finally adjudicated.

It should be noted that there is no charge for either an I-131 or an I-765 when filed concurrently with, or subsequent to, a supporting I-485, and these can be renewed (for free) as many times as you need them to be until your applications are adjudicated.

IV. Initial Evidence

Together with the forms detailed above, you will also need to enclose the following documents with your packet:

(1) A copy of your marriage certificate issued by the appropriate civil authority. You should also enclose proof of termination of any prior marriages for either spouse (certified copies of divorce decrees, certified copies of death certificates, court orders showing a grant of annulment, etc.). [Required for I-360]

(2) Evidence that the non-alien spouse was a US citizen (this could be (i) a certified copy of their birth certificate, (ii) a copy of the biographical page of their US passport which was valid at the time of their death, or (iii) a copy of their naturalisation certificate, if they were a naturalised US citizen). [Required for I-360]

(3) A certified copy of the death certificate of the US citizen spouse, issued by the appropriate civil authority. [Required for I-360]

(4) A certified copy of the alien's birth certificate, issued by the appropriate civil authority. [Required for I-485]

(5) Proof of legal entry to the United States (this should be a copy of the most recent I-94 issued to the alien, if possible). [Required for I-485]

(6) A copy of the alien's nonimmigrant US visa if they have received a visa from a US post within the past year. [Required for I-485]

(7) Details of the alien's criminal record: [Required for I-485]

If arrested but no charges were brought:

A statement from the appropriate agency or a court, confirming that no charges were filed.

If arrested and charges were subsequently filed:

A court-certified copy stating the final disposition of the case (acquitted, convicted, etc.).

Note: For any traffic incident which did not involve alcohol or drugs, if you were not arrested you do not need to provide any documentation with regards to those incidents if the final penalty was either (i) Points on your driver's license, and / or (ii) a fine of less than US$500.

(8) Evidence that your marriage was bona fide. This can include but is not limited to:

(i) Certified copies of birth certificates for children born to the alien and deceased US citizen spouse.

(ii) Evidence of co-mingling of finances (such as joint bank account statements, joint federal tax returns, joint life / health / property / vehicle insurance policies, etc.).

(iii) Copies of joint lease agreements / mortgages indicating shared property ownership or rental.

(iv) Any other documents indicating joint ownership or liabilities.

(v) Sworn affidavits from friends / family members that had personal knowledge of your marriage and can attest to its legitimacy.

(vi) Photographs of family members together (ideally the alien and US citizen spouse, but can also include children, gatherings, group events, etc. - often 15 - 20 photographs through the lifetime of the relationship will suffice).

(9) Up to 6 passport-style photographs (2 for the I-485, 2 for the I-765 (if you are filing it) and 2 for the I-131 (if you are filing it).

(10) If you have previously been issued with an Employment Authorisation Document, a copy of the front and back. If the applicant has never had an EAD previously, you must instead enclose a copy of a government-issued photo identification document, such as a passport, driver's licence, visa, photo ID card, etc. [Required for I-765, if filing]

Important Note: you should submit legible photocopies of all documents that you submit to USCIS, but you must have the originals on-hand for your interview as they may request to see them.

V. Next Steps

You should assemble the packet, keeping a form together with its required evidence, moving to the next form with its evidence, etc. Use paperclips to keep things together, not staples.

You can always check the latest filing fees at https://www.uscis.gov/fees but at the time of writing they are:

 I-360 - US$405
 I-485 - US$1,070 (including $85 fee for biometrics)
 I-864W - Free
 G-325A - Free
 I-765 - Free
 I-131 - Free

Enclose two cheques (one for the I-485, one for the I-360) payable to "U.S. Department of Homeland Security".

You should also enclose a cover letter, briefly itemising all of the forms you are enclosing, together with details of the evidence submitted. Make a complete copy of everything you submit (so you end up with two identical packets), and mail one of them to:

USCIS
Attn: I-360 & I-485
P.O. Box 805887,
Chicago, IL 60680-4120

(for USPS deliveries)

USCIS
Attn: FBAS, I-360 & I-485
131 South Dearborn - 3rd Floor
Chicago, IL 60603-5517

(for FedEx / UPS deliveries)

You should expect to wait at least six months before hearing anything with regards to your case, although you should receive a biometrics appointment within the first few weeks after mailing your application.

Widow/ers seeking an immigrant visa should complete an I-360, together with its required initial evidence, and contact the Immigrant Visa Unit of the US foreign mission having jurisdiction over your place of residence, to see how they wish you to pursue your application.

VI. Further Reading

"USCIS released official guidance following the change in the law in 2009, which you can read here.

Widow/er law is complex, and I would recommend that you at least have a consultation with an immigration attorney if you have a widow/er case, even if you do not retain their services.

It should be noted that widow/ers always receive a ten year green card regardless of the length of the marriage, and that you must wait five years after approval before you can apply for naturalisation (since you are no longer married to a US citizen and so can no longer qualify in three years due to marriage)."