August 25, 2011
The death of a spouse is a traumatic and agonizing experience. When the surviving spouse is seeking an immigrant visa based on the marriage, however, the death of the US citizen spouse can be even more traumatic as it affects the immigration application process.
Before 2009, the immigration laws allowed only widows who had been married for at least two years before the US citizen spouse’s death to obtain permanent residency based on the marriage. The laws allow an individual to file a petition for oneself seeking permanent residency. To qualify, the individual must be able to furnish evidence to establish that the marriage was legitimate and bona fide. The individual must also file the petition within two years of the US citizen spouse’s death and cannot be re-married.
For those who had not yet been married for two years prior to the US citizen spouse’s death, the law did not allow the widow to self-petition for permanent residency. President Obama thankfully changed the law on October 28, 2009, so that all widows, regardless of whether the marriage was shorter or longer than two years at the time of the spouse’s death, may apply for permanent residency.
Eligibility under the law applies to widows who are not present in the United States. As well, widows are eligible regardless of when their spouse died, even if it was many, many years or possibly decades ago.
The law still requires that a widow file the necessary visa petitions within two years of the US citizen spouse’s death and not be remarried. For those whose US citizen spouse died before enactment of the law on October 28, 2009, the law mandates that the individual submit the immigration applications no later than October 28, 2011. Failure to timely file the petitions will prevent a widow from self-petitioning for permanent residency based on the marriage. It is therefore vital to ensure timely compliance with the filing window.
The death of a loved one is a tragic enough event. Thankfully, the immigration laws now acknowledge the injustice and aims to rectify the tragedy faced by a surviving widow.