New Law Allowing Surviving Family Members Continue Green Card Application

Background of the Law

On October 28, 2009, President Obama signed into a new law (H.R. 2892) which allows surviving family members to obtain U.S. permanent residence green card) in the U.S. despite the death of the petitioner or the principal beneficiary.

In the past, the law provided that when the petitioner or the principal beneficiary in a family-based immigration petition passed away, the petition would be denied because the petitioner or principal beneficiary died. If the beneficiaries were present in the U.S., their adjustment of status applications would be denied at the time.

Under the circusmtances, previously there were limited options for the surviving family members.  A surviving spouse of a U.S. citizen can self-petition for his or her green card, but must be the marriage occurred at least two years before the petitioner’s death. Another possiblity is that the USCIS may reinstate the petition for "humanitarian" reasons when the petitioner of a family-based petition dies before the beneficiaries of the petition became permanent residents.

The new law provides a relief for family members who are under such circumstances.

Self-Petitioning of Widow or Widower of US Citizens and Their Children

Previously the law only allows a widow or widower of US citizens to self-petiton if the marriage has lasted more than two years at the time the US citizen spouse dies, the new law now can allows a widow or widower to file self-petition using form I-360 to apply for permanent residence status (green card) if the marriage was less then two years before the US citizen dies.  The law does not require that a former I-130 petition has ever been filed by the US citizen spouse.  If an I-130 was already been filed before the US citizen’s death, such I-130 petition can be considered automatically converted a I-360 petition.

The I-360 can be filed concurrently with Adjustement of Status if the surviving spouse is physically presence in the U.S.; otherwise he or she may file I-360 first.  Upon I-360 approval, the surviving spouse can apply for immigration visa via consular processing.  Affidavit of Support is not required in the self-petitioning process. However, self-petitioner must demonstrate to the government that he or she is not likely to become a public charge.

Unmarried children (under 21 years old) may be included in with form I-360 with the self-petitioner.  If an I-130 was previously filed for the children, it may be considered automatically converted to I-360.  Note that although the law defines "child" as someone who is unmarried and is under 21 years of age, the Child Status Protection Act (CSPA) may allow your child’s age to be "frozen". As a general rule, if the I-130 or the I-360 petition was submitted prior to your child’s 21st birthday, they will continue to be considered a child no matter how old they are when the USCIS decides their application for a green card as long as they remain single.

There are limitations to the new law.  If the widow or widower remarries before he or she becomes permanent resident, the benefit of self-petitioning in the new law no longer applies.  Additionally, for those who married less than two years at the time of the US citizen’s death, the new law requires the filing of I-360 within two years of the new law’s enactment, i.e., before October 28, 2011.  After the said date, a self-petitioning must be filed within two years of the US citizens’s death. 

Benefits to Surviving Family Members Where Immigration Petitions Filed

If an Immigration Petitoin (I-130) has been filed prior the US Citizen’s death, the following surviving family members who reside in the U.S. at the time of the death of the US citizen and continue to reside in the U.S., are covered under the new law despite the death of the US citizen: 

  • Parents, spouses and children beneficiaries of petitions from U.S. citizens;
  • Beneficiaries of family-based petitions;
  • Derivative beneficiaries of employment-based petitions;
  • Beneficiaries of asylees/refugee relative petitions;
  • Nonimmigrants in "T" (trafficking victims) or "U" (crime victims) statuses;

Unlike self-petitioning for US citizen’s widow or widower, affidavit of support is required in this category. If the beneficiary resides out of the U.S. at the time of the US citizen’s death, he or she is not covered by the new law. The spouse of a US citizen who keeps residing in the U.S. can still apply for adjustment of status under this section even if he or she has remarried. Same as self-petitioning, it is required that the form I-360 be filed within two years of the law’s passage.

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