Foreigner Married Less Than 2 Years Can Become Legal Despite Death of U.S. Citizen Spouse

by Elizabeth R. Blandon

Until recently, the death of a U.S. citizen spouse terminated the foreign spouse’s chance for becoming a legal permanent resident (LPR) based on that relationship if they were married for less than two years. If they were married for more than two years, the foreigner could self-petition as a widow(er). Recently, the law has changed.

In October 2009, President Obama signed a bill into law removing the “widow penalty,” as this automatic revocation of the US citizen’s petition is known. However, foreign spouses whose US citizen spouses died more than two years ago must apply for this benefit immediately. The benefit for them expires after two years. After October 28, 2011, the petition by the foreign widow(er) must be filed within two years of the U.S. citizen’s death.

Foreigners can become LPR years after their US citizen spouse died even though the US citizen’s petition was initially denied or never filed.

The U.S. Citizenship and Immigration Services (CIS) agreed that it will not remove, or deport, widows or their children even if they are currently in unlawful status. In addition, the following already-filed applications will be adjudicated by CIS despite the death of the principal: immediate relative, family preference petitions, employment-based dependents, T and U nonimmigrants, and asylum and asylee relative petitions.

If the foreigner is now living outside the United States, (s)he can file for an immigrant visa. The person then becomes an LPR upon entering the U.S. The residency also extends to the children of the widow(er). Although child for immigration purposes is usually defined as a person less than 21 years of age, the Child Status Protection Act permits sons and daughters over 21 years of age to become residents also.

Although this article is an immediate call to action, better right, than right away. This is not legal advice.