Continuing the Immigration Journey, Part 2: Survivor Benefits for Widow(er)s of U.S. Citizens

Navigating the immigration landscape in the wake of a loved one’s passing is a profound journey marked by unique challenges. Last month, we looked at humanitarian reinstatement, a legal mechanism allowing a substitute sponsor to “step in” under certain circumstances for a deceased petitioner, ensuring the progression of an immigration case beyond the petitioner’s passing. This month, we explore another avenue offering hope and continuity for immigrants facing the abrupt interruption of their journey due to the death of their petitioner: survivor benefits for widow(er)s of U.S. citizens.

What are survivor benefits for widow(er)s and why are they needed?

In marriage-based immigration cases, one of the first steps is filing of a Form I-130, Petition for Alien Relative (“I-130” or “I-130 petition”), with U.S. Citizenship and Immigration Services (“USCIS”). As we touched on last month, an I-130 petition is typically invalidated or revoked if the petitioner dies before the intending immigrant obtains their legal permanent residence. However, there is a legal mechanism, under section 201(b)(2)(A)(i) of the Immigration and Nationality Act (“INA”), that allows widow(er)s of U.S. citizens to continue to be eligible to immigrate if they meet certain requirements.

Who is eligible for survivor benefits for widow(er)s of U.S. citizens?

A noncitizen may be eligible for permanent residence as the widow(er) of a U.S. citizen if they:

• Were legally married to your U.S. citizen spouse when they passed away;
• Were not divorced or legally separated at the time of their spouse’s death;
• Can show that their marriage was “bona fide” (in other words, that they entered into their marriage in good faith and not for immigration purposes);
• Are not remarried;*
• Either have a pending or approved I-130 petition that can be converted into an I-360 petition, or file an I-360 petition within two years of their spouse’s death; and
• Are otherwise admissible to the United States.

When applying for survivor benefits as a widow(er) of a U.S. citizen, the noncitizen may also include any unmarried children who were under the age of twenty-one when the visa petition (I-130 or I-360) was filed.

*Note: The surviving noncitizen spouse must remain unmarried until they receive their permanent resident status (“green card”). If they do remarry, they may still be eligible to pursue other relief, under INA § 204(l), which will be covered in next month’s installment.

How does someone apply for survivor benefits as a widow(er) of a U.S. citizen if… 

• They have a pending or approved I-130 petition filed by the U.S. citizen spouse?

If the noncitizen already has a pending or approved I-130 petition, they must notify USCIS of their spouse’s death by sending a copy of their spouse’s death certificate and a written request to convert the petition from I-130 to I-360. USCIS will then automatically convert the petition.

• No I-130 was ever filed by the U.S. citizen spouse?

If there was no I-130 pending or approved at the time of the U.S. citizen spouse’s death, the noncitizen must file their I-360 self-petition with USCIS within two years of their spouse’s death. Processing times for I-360 petitions are currently estimated between 7.5 and 32 months.

What happens after the request is made if the surviving noncitizen spouse…

• Is eligible to adjust their status in the United States and has already filed their Form I-485, Application to Adjust Status, with USCIS?

If the noncitizen is eligible to adjust their status in the United States and has already filed their Form I-485, Application to Adjust Status (“I-485 application”), USCIS will adjudicate the I-485 based on the approved I-360 or I-130 converted to I-360.

• Is eligible to adjust their status in the United States and has NOT already filed their Form I-485, Application to Adjust Status, with USCIS?

If the noncitizen has a pending or approved I-130 petition but has not yet filed their I-485 application, they can file the I-485 with the I-130 converted to I-360 as the basis.

If they are eligible to adjust their status in the United States and do not already have a pending or approved I-130 petition, they can file the I-360 petition simultaneously with their I-485 adjustment application, and USCIS will adjudicate both together.

• Is outside the United States or is ineligible for adjustment of status in the United States?

USCIS will forward the approved I-360 or I-130 converted to I-360 to the National Visa Center (“NVC”) for immigrant visa consular processing.

I think this may apply to me or someone I know. Is there anything else I should know?

As mentioned above, in widow(er) cases, the surviving noncitizen spouse can include their children who are, or were, under the age of twenty-one at the time of the I-130 or I-360 filing.

Another distinction is that widow(er) applicants do not need a Form I-864, Affidavit of Support, to establish that they will not become a public charge. Instead, they file a Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, to establish that an exemption to the affidavit of support requirement applies to them.

Additionally, while certain requirements are relaxed for widow(er)s, widow(er) applicants must still prove that they are admissible to the United States under all grounds of inadmissibility and that they meet other eligibility requirements under the law. For instance, widow(er)s must still complete the medical examination and vaccination requirements for all applicants for permanent residency in the United States; and widow(er)s are not exempt from the unlawful presence bars and may therefore require an unlawful presence waiver, for which they may or may not qualify now that their U.S. citizen spouse is deceased.

This information is intended for educational purposes only. If the above information applies to you or someone you know, we recommend reaching out to an experienced immigration attorney for guidance and support needed to navigate these legal processes successfully.

Rest assured, the road to immigration doesn’t always end with the loss of a loved one. The right legal avenues may provide a path forward.