Filing Deadline for Surviving Spouse of U.S. Citizen

On October 27, 2011, certain surviving spouses of U.S. citizens will run out of time to pursue permanent residence (“green card”) as widows or widowers based upon a change to U.S. immigration law that occurred in October 2009. As explained here for the benefit of MurthyDotCom and MurthyBulletin readers, the surviving spouse of a U.S. citizen who died prior to October 28, 2009, must file the required application prior to October 28, 2011. Any widow or widower who lost her/his spouse on or after October 28, 2009 will also face additional deadlines in pursuit of the case, potentially as early as October 28, 2011, as the cases must be filed within two years of the death of the U.S. citizen spouse.

Background: Widow Penalty Eliminated October 2009

The U.S. Congress enacted a reform on October 28, 2009 of the U.S. immigration laws pertaining to the eligibility of widows and widowers of U.S. citizens to obtain permanent residence. This law removed what was commonly referred to as the “widow penalty,” which previously had limited eligibility for permanent residence to surviving spouses who had been married to the (now deceased) U.S. citizen for two years or more. Thus, the spouse of a citizen who died before their marriage reached the two-year point was often left out of any options to remain legally in the United States. The major change in the treatment of this often-overlooked group was examined in our NewsBrief, New Immigration Procedure for Surviving Family Members (13.November.2009).

Who Must File With USCIS by October 27, 2011?

Under the current immigration law, a deadline of October 27, 2011 exists for surviving spouses of U.S. citizens who died before October 28, 2009. Any surviving spouse must take prompt action, if s/he has not already filed the U.S. Citizenship and Immigration Services (USCIS) form, I-360 Petition for Amerasian, Widow(er), or Special Immigrant, to seek lawful permanent residency based on the previous spousal relationship with the now deceased U.S. citizen. This deadline is based on a general requirement in the law that the I-360 be filed within two years of the death of the U.S. citizen. If the U.S. citizen died before the enactment of this change in the law, the two years is counted from the day the law was enacted, as that is when such individuals became eligible to file the I-360.

If the USCIS does not receive the Form I-360 filing by October 27, 2011, from one who lost her/his U.S. citizen spouses prior to October 28, 2009, the individual, as well as any otherwise eligible children, will lose their ability to obtain the green card based upon their relationship with the deceased U.S. citizen. Guidance on these issues was included in the USCIS’s December 12, 2009 memorandum that implemented these changes in the immigration law.

Deadline for Surviving Spouse of U.S. Citizen

The October 27, 2011 deadline applies only to the surviving spouses of U.S. citizens who died before the change in the law on October 28, 2009. The deadline for I-360 filings for other surviving spouses is two years following the death of the U.S. citizen spouse. The first of these deadlines, therefore, will take place on October 28, 2011. Subsequent deadlines will follow, depending upon the date of death. The need to file Form I-360 applies if the U.S. citizen did not file an I-130 spousal petition prior to death.

Pending I-130 Petitions Automatically Convert to I-360 Petition

If the U.S. citizen was able to file the I-130 relative petition for his/her foreign-born spouse, the USCIS will automatically convert the I-130 to an I-360 petition, once notified of the petitioning spouse’s death. Thus, surviving spouses in this situation simply need to inform the USCIS of their loss, rather than making a separate I-360 filing.

Surviving Spouses Should Seek Benefits Now

Considering this deadline is now just over a month away, individuals who believe they may qualify for lawful permanent residence status based on marriage to a now-deceased U.S. citizen, should consult promptly with a qualified immigration attorney. Immigration law does not provide for late-filings in situations where the U.S. citizen died before October 28, 2009 or in which the two-year period since the death has passed. Individuals with other questions about eligibility and the procedures for extending benefits to children in this situation should review the information on the USCIS Factsheet.

Conclusion

The USCIS’s issuance of a reminder about this deadline is appreciated. MurthyDotCom and MurthyBulletin readers who know someone potentially eligible for benefits as a widow or widower are urged to share this information. An individual who believes s/he is eligible under the provisions for widows and widowers should consult with a qualified immigration attorney at the earliest. Having suffered the loss of one’s husband or wife, it would be unfortunate to also lose this opportunity to become a green card holder.

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