Prior to October 28, 2009, the visa petition filed by a U.S. citizen for his/her spouse was automatically denied if the citizen spouse died prior to two years of marriage.
Under the law then in effect, only those who were married at least 2 years before the petitioner’s death could obtain their green card. The unfortunate effect of the law was called the “widow penalty” because the surviving spouse was penalized by the citizen spouse’s untimely death.
On October 28, 2009, the President signed a law that ended this widow penalty. Section 568(c) thereof removed the two-year marriage requirement and allowed widows and widowers to self-petition for themselves and their children for permanent residence.
It also set a two-year deadline for widow(er)s whose spouses died before the law was passed. The last day for these spouses to file a self-petition is October 28, 2011. This means, for example, that a surviving spouse who married in 2000 and became widowed in 2001 must file the self-petition on or before that date.
If the citizen spouse died on or after the passage of the law, the widow(er) must file the self-petition within two years of the spouse’s death.
The self-petition is made on Form I-360 which may be filed concurrently with an application for adjustment of status (Form I-485) if the spouse is in the United States. If outside the United States, the spouse can file the Form I-360 with the U.S. embassy or consulate, and then apply for an immigrant visa after approval of the Form I-360. There is no need to submit an affidavit of support from a substitute sponsor.
If an I-130 was filed by the U.S. citizen spouse but it was denied before the law was passed, the widow(er) must file an I-360 petition on or before October 28, 2009.
If an I-130 petition was filed but was “pending” under the law at the time it was passed, the petition is automatically converted to an I-360 petition. On the other hand, an approved I-130 petition that was revoked due to the petitioner’s death would be treated as an approved Form I-360. In both cases, there is no need for a request for conversion but the widow(er) must inform the USCIS of the petitioner’s death.
For the widow(er) to be eligible for conversion benefits, the marriage must have been bona fide, and they must not have been legally separated at the time of death. The widow(er) must not have remarried.
If the widow(er) remarried, it could be argued that he/she may still be eligible to adjust status if an immediate relative petition was filed by the U.S. citizen spouse before his death. In this case, the widow(er) may adjust status as a surviving relative under a different provision of the law and the two-year deadline does not apply. A requirement of that law is that the widow(er) must have resided in the U.S. at the time of the death of the petitioner and must continue to reside in the U.S.
The widow(er) may include unmarried children under 21 years old as derivatives in the self-petition. An unmarried child over 21 years of age may still be eligible if he/she was under 21 when the I-130 petition was filed by the U.S. citizen for the alien spouse, regardless of whether a separate I-130 was filed for the child.
The USCIS will reopen I-485 applications of widow(er)s already in the United States which remained “pending” at the time of the law’s enactment. If the widow(er) left the United States voluntarily without advance parole, the adjustment application would already be considered abandoned, although the widow(er) may apply for an immigrant visa abroad.
The October 28, 2011 deadline should not be missed or else the widow(er) may lose the ability to immigrate. It must be remembered that it is not a deadline to become a permanent resident or to arrive in the United States and that it only sets the last day for starting the process by filing the I-360 petition.