Widow(er) of a U.S. citizen
If you were married to a U.S. citizen who has never filed a Form I-130, family petition for you, you can now file a Form I-360, Self-Petition as a Widow(er) of a U.S. Citizen. The Form I-360 must be filed within 2 years of your spouse’s death and you cannot remarry before obtaining your permanent residence. If you have a pending or approved I-130 petition, it is automatically converted into an I-360 when USCIS is notified of the death. Among other things, you still must demonstrate that your marriage was entered into in good faith.
Fiancé(e) of a U.S. citizen
Prior to the approval of Form I-129F, a petition for a U.S. citizen’s fiancé(e) is automatically terminated when the U.S. citizen petitioner dies. If the petition is approved and the marriage occurs within 90 days of admission and the petitioner dies thereafter, the immigrant may apply for permanent residency without filing an I-360, notwithstanding the death of the U.S. citizen petitioner.
Widow(er) of a green card holder
Form I-360, Self-Petition as a Widow(er) is only available for widow(er) of a U.S. Citizen. Widow(er) of a deceased green card holder may request for a section 204(l) relief. Section 204(l) relief is available only if a I-130 petition has already been filed, regardless of when whether it is pending or approved when the spouse dies. In addition, section 204(l) applies only if the beneficiary has been residing and continues residing in the U.S. on the date when USCIS makes a decision on the residency application. 204(l) relief is a discretionary relief granted on a case-by-case basis by USCIS. If you know that you will have an interview at a U.S. consulate, you should request 204(l) relief from USCIS in advance and plan your interview accordingly. If you cannot not meet the residence requirement under 204(l) relief, you may request for a humanitarian relief.
When a Non-Spouse Family Petitioner Dies
Same rules here as noted above in the section pertaining to to widow(er) of a green card holder. You may be entitled to section 204(l) relief if you are the beneficiary of a pending or approved Form I-130 petition of any preference category provided that other conditions are met.
Section 204(l) is also available for a derivative beneficiary if a principal beneficiary died. For example, if your sister-in-law filed a I-130 petition for your family, entering your spouse as the principal beneficiary, you and your minor children the derivative beneficiaries. If your spouse passes away, you and your minor children may continue with the residency application if a 204(l) relief is granted and you meet all other requirements.
If you have questions about whether your relative’s death may affect your immigration case, your wisest course would be to consult with an experienced U.S. immigration attorney. 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.
Wilner & O’Reilly is a multi-state law firm exclusively dedicated to the practice of immigration law. For individualized advice on your immigration situation, please feel free to contact us. We offer free consultations at our offices in Orange, Riverside, Fresno, Sacramento, San Diego, and San Francisco, California; Salt Lake City and Orem, Utah; and Boise, Idaho.
RICHARD WILNER – FOUNDING PARTNER
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC, and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs, and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.