Change to law for widow(er)s of US Citizens

For years, widows and widowers of United States Citizens were not eligible to apply for lawful permanent resident status (Green Card) unless they showed, among other things, that they had been married at least two years and that they applied within two years of the death.

Recently, the U.S. government decided to amend that law and USCIS has subsequently changed their policy regarding widow(er)s petitions to make it easier for them to apply for lawful immigration status in the United States.

The major change is the removal of the two-year marriage requirement previously necessary for a widow(er). Additionally, when a widow(er) qualifies as an immediate relative under the law, his or her unmarried minor children will also qualify for the same status. The law applies equally to widow(er)s living abroad, who are seeking immigrant visas and widow(er)s in the United States, who want to become permanent residents based on their marriage. Also, the two year deadline to file a petition for immigrants who became widow(er)s prior to October 28, 2009 has been extended to october 28, 2011, a date which is just around the corner. So a lot of people who thought previously they would not be eligible or had their petition denied because of the 2 year requirements could now file a new petition, have their old petition converted or file a motion to reopen their case.

This is however fairly new legal territory and potential petitioners need to tread carefully.

A useful memo on the new law can be found on the USCIS website here. There is also a Fact Sheet available here. However, these memo and fact sheet are more useful for attorneys than the general public. And the potential immigrants need to be warned that even if they qualify for such a petition, this might not be the smooth path to citizenship that they believed it was.

The new law, for example, does not make any exceptions or give preferential treatment to any immigrant widow(er)s who have had previous immigration violations. These types of petitioners will need to file additional applications for waivers of those violations and they will most likely need to depart the United States and apply for a visa and waiver from abroad. Although there is a program called parole-in-place to allow military widow(er)s to remain in the United States during the pendency of the application process, this benefit has not been extended so far to other widow(er)s. The law regarding widow(er)s is complex and it would be highly advisable to consult with an attorney before filing anything.