Please note that the deadline for certain widows of U.S. citizens (married less than 2 years and whose spouse died before October 28, 2009) filing I-360 self-petitions is October 28, 2011. If you do not yet have your green card, and you are a widow(er) of a U.S. citizen married less than two years, please seek immigration counsel immediately! Read the Press release to the right for more detailed information about the deadline. Widow(er)s who are residing abroad are being advised by some U.S. Consulates and Embassies to file the I-360 petition with USCIS, despite USCIS instructions advising to file with the Consulate. I have confirmed today, Oct. 20, 2011, with one USCIS office abroad that consulates and Embassies MUST accept a properly signed I-360 with proper filing fee. The shifting of I-130 petitions to the USCIS offices in the U.S. does not affect I-360 petitions. Also, the date the petition is received, with proper signature and fee, counts as properly filed, regardless of whether or not it is with the Consulate or the appropriate USCIS office. See: 8 CFR 204.1(d) A petition shall be considered properly filed if (1) it is signed by the petitioner, and (2) a fee has been received by the Service office or United States Consular office having jurisdiction.
If you are the widow(er) of a U.S. citizen, a recent change in the law may affect your ability to immigrate. Section 568(c) of Public Law 111-83 amended the Immigration and Nationality Act so that you may be eligible to immigrate, even if you and your deceased spouse were married for less than 2 years when your spouse died. This change took effect on October 28, 2009, when the President signed the new law. As a result, you may now file Form I-360 for Special immigrant classification as a widow/widower, even if you were married less than 2 years when your spouse died.
You must still file your Form I-360 no later than 2 years after the citizen’s death. If your spouse died before October 28, 2009, however, and you were married for less than 2 years, you can file a Form I-360 for Special Immigrant Classification as a widow/widower, so long as you do so no later than October 28, 2011.
Your eligibility to immigrate as the widow(er) of a U.S. citizen ends if you remarry before you immigrate.
Following the passage of P.L. 111-83, which removed the two year marriage requirement for widow(er)s of U.S. citizens, guidance has been issued to assist survivors apply for benefits or have their old cases reopened. It is important to note that this information is of a general nature and cannot be substituted for the advice of a competent attorney in a given case.
There are important differences in the way cases are being treated following passage of the new law. One important difference is that people with "Ninth Circuit cases" have special rights. If your spouse filed an I-130 or I-129F petition on your behalf and either the petition was pending with or adjudicated at a USCIS office located in the Ninth Circuit or you or your late spouse were residing in the Ninth Circuit at the time of your spouse's death, then you have a Ninth Circuit case. To find out the states that are within the Ninth Circuit, please review this map:
CAN'T FIGURE OUT IF THE WIDOW(ER) GUIDANCE APPLIES OR THE 204(l) GUIDANCE APPLIES? Read this ARTICLE and FLOWCHART. Make sure to also fully review the 204(l) guidance memo below, and the widow(er) guidance above.
January 10, 2011 - USCIS issues FINAL 204(l) guidance for Surviving Relatives. This memorandum covers some widow(er) issues, but significantly is the first official policy memorandum issued covering the new Section 204(l), which protects a variety of relatives of employment based and family based petitions, as well as asylees, refugees and U/T nonimmigrants. An analysis will appear on this website soon.
June 1, 2010 - AILA issues comment on Draft 204(l) Memorandum, authored by SSAD counsel Brent Renison. SSAD endorses the comments to the memorandum. The comment addresses survivors other than widow(er)s, but also discusses widow(er)s who remarry.
In the case of a widow(er) whose spouse died prior to October 28, 2009, the following general guidance should be reviewed:
If the I-130 had not been denied on October 28, 2009 (still pending or on appeal), the case is considered “pending” and can now be approved without a new filing;
If the I-130 has a Ninth Circuit tie (adjudicated at a USCIS office within the Ninth Circuit (see circuit map below), or petitioner or beneficiary resided in Ninth Circuit at time of death), the case is considered “pending” and can now be approved without a new filing, but an InfoPass appointment (or letter if a consular case) is required to alert the USCIS office which denied the case that the case should be reopened under the Hootkins class action;
If the I-130 was denied and not on appeal on that day, and has no Ninth Circuit tie, then the case was not “pending” and a new I-360 is required to be filed by October 28, 2011.
It is no longer necessary to show a marriage of at least two years prior to filing an I-360 petition for widow or widower (widow(er)).The words “for at least 2 years at the time of the citizen’s death” were permanently removed by the legislation.Self-petitioning widow(er)s must not have remarried, and must file an I-360 petition within two years of the death.If the death occurred before October 28, 2009, however, at any point in the past, widow(er)s married less than two years now have until October 28, 2011 to file a widow(er) self petition on Form I-360.
Despite this filing deadline, certain widow(er)s with cases “pending” on October 28, 2009 are allowed to have a previously-filed I-130 converted under 8 CFR 204.2(i)(1)(iv) to an I-360 automatically, without the need to re-file an I-360 petition.USCIS issued a memorandum on December 2, 2009 describing which cases were considered “pending” on the date of enactment, which has led to some confusion by USCIS field offices and AILA members.If the I-130 was denied before October 28, 2009 and was not on appeal, and further if the case has no Ninth Circuit tie, action must be taken before October 28, 2011 through the filing of a new I-360 or eligibility could be irretrievably lost.If the I-130 was considered pending because it is a Ninth Circuit case, an InfoPass appointment is still required to alert the USCIS office of the existence of the case and the claim that it is covered under the memorandum.The memorandum has led some to believe that no action is necessary and that USCIS will automatically determine which cases qualify.That is not the case, and action must be taken in either scenario.
May 17, 2010 - USCIS has now issued a draft memorandum on the new Section 204(l), dealing with other survivor situations.
March 2, 2010 - This page has been substantially updated following change in USCIS policy, forms, and treatment of Ninth Circuit Class members. Please reveiw the new information carefully.
February 26, 2010 - USCIS has issued a new I-360 Form, incorporating the new law changes, and updated their instructions and filing locations. See the USCIS Website for the I-360 Changes. If you already filed your I-360 with the old form, you do not need to re-file a new one. This is just for new filings going forward. Please also note that new filing locations have been announced (see below). There are also a few helpful USCIS links that have seen recent updates:
If you have a Ninth Circuit case, you should review the information available on the CLASS ACTION page of this website. Additionally, you may consider submitting a request to USCIS asking that your case be reopened and approved under the new guidance for Ninth Circuit cases. For those who qualify under the Ninth Circuit rules a new application does not need to be submitted, and this can save on fees and processing times. USCIS has advised us that those with Ninth Circuit cases wishing to have them reviewed under the new guidance should set an INFOPASS appointment and bring a request to have the case reopened. You may need to be re-fingerprinted, and may need to bring an updated medical and other documentation if requested. There are a number of Ninth Circuit cases that have already been granted by USCIS district offices using this procedure.
Non-Ninth Circuit Cases
Most people who do not have a case that fits within the Ninth Circuit cases criteria will still be able to apply for benefits. The difference is that a new application will probably be necessary. If your spouse never filed a petition on your behalf before the death, then you are not considered to have a Ninth Circuit case even if you live within the Ninth Circuit's jurisdiction. If neither you nor your spouse were residing in the Ninth Circuit at the time of the death, you may still qualify for Ninth Circuit treatment if your I-130 or I-129F was pending or adjudicated at a USCIS office located within the Ninth Circuit. If none of that applies, however, you must consider re-filing for benefits.
New Filings for Non-Ninth Circuit Cases
The USCIS has decided to make widow(er)s who did not have a pending case or federal litigation pending at the time of the new law passage file new applications instead of adjudicating the old filings. So, for example, if you and your spouse lived in Chicago at the time of death, and the I-130 and adjustment were filed there, and your case was denied before October 28, 2009, your case will probably not be reopened and you will need to re-file. This section includes some resources for determining what needs to be filed and at what location.
Most people who are in the United States, and who entered the country legally will be filing to adjust status with Form I-485 along with the I-360 Self-Petition. Those who are not in the United States will file the I-360 Self-Petition by itself at the U.S. Embassy and be processed for an immigrant visa through the State Department at an Embassy abroad. In the past, some Embassies have instructed people to file the I-360 petition at the Vermont Service Center, but now that "stand-alone" I-360s for widows are split up between USCIS Dallas or Phoenix lockboxes based on residence, it is unclear where to file these. When in doubt, follow the advice of the Embassy.
For those who are seeking to adjust status along with the self-petition (an I-360/I-485 combination), or who want to file an adjustment of status application (I-485) following an I-360 filing that is still pending or an approved petition, the filing location is the same. It is the USCIS Chicago Lockbox. Below are some examples of different situations, and suggestions on locations for filing:
I-360 Recently Approved Even When Filed as Deferred Action
Surviving spouses who filed Deferred Action (DA) requests before the law passed are now receiving notices granting immigrant classification as the widow(er) of a U.S. citizen. This is considered an I-360 approval, and an adjustment of status application may be filed. The filing chart indicates that if the person is applying based on an already approved I-360 petition, the I-485 adjustment application should go to the Chicago Lockbox.
I-130 or I-129F filed together with I-485 Adjustment Application and in U.S. pursuant to lawful admission
If you have an I-130/I-485 combination (or I-129F with I-485 filing) that was pending on October 28, 2009, or you qualify as a Ninth Circuit case (see above) you should be able to have the case reopened and adjudicated under the new law. Specifically, USCIS on its own motion can reopen a Form I-130 for a new decision in light of FY2010 DHS Appropriations Act, Pub. L. 111-83, §568(c), 123 Stat. 2142, 2186-87 (2009). Under 8 C.F.R. 204.2(i)(1)(iv), the Form I-130 is converted to, and may be adjudicated as, a widow(er)’s Form I-360. Once the I-360 is approved, the pending or denied I-485 Application for Adjustment of Status can also be approved. A sample request is provided here. It will be useful to include with the request a copy of any denial, and any related receipt notices received for the case.
If your case does not fall within the Ninth Circuit cases, then you must consider filing an I-360 and I-485 together with the Chicago Lockbox. That is because USCIS does not consider your case to have been "pending" on October 28, 2009, and therefore they will not reopen the old case. It is unfortunate that USCIS did not decide to reopen denied cases outside the Ninth Circuit, but at least an option remains to re-file the I-360 and I-485 applications under the new law.
No I-130 or I-129F ever filed but surviving spouse in U.S. pursuant to lawful admission
In this case, a new I-360 and I-485 adjustment of status application is to be considered, because there is no prior petition to be auto-converted. There is a two-year deadline by which the I-360 must be filed, and that is October 28, 2011. The combined I-360 and I-485 may be filed with the Chicago Lockbox together with an I-765 application for Employment Authorization Document, G-325A, and I-864W Form.
I-130 filed but surviving spouse abroad
In this case, the surviving spouse is abroad and cannot file an adjustment of status application, but the I-130 was previously filed and is either pending or was denied. Ninth Circuit applicants may have the old I-130 approved as an I-360 or may consider re-filing a new I-360. Certainly, re-filing has its advantages since a receipt notice would be issued and would be able to be tracked. One might try both avenues - filing an I-360, and also asking the agency that has the I-130 to adjudicate as an auto-converted I-360. Non-Ninth Circuit applicants must file a new I-360 petition. In the end, after the I-360 (or converted I-130) is approved, it will be sent to National Visa Center and then on to the Embassy for an immigrant visa to be issued, allowing the person entry as a lawful permanent resident.
I-130 never filed and surviving spouse abroad
In this situation, an I-360 must be filed within the two year window expiring October 28, 2011. Instructions call for filing the I-360 with the Embassy abroad, although many Embassies simply instruct the applicant to apply directly with one of the Service Centers. The filing of the I-360 is the first step in getting the immigration process started, and should be considered as soon as possible.
General Filing Tips
When requesting benefits under the new law, whether asking for reopening or filing anew, there are a few things to keep in mind. First, it is important that you consult a competent immigration attorney. If you cannot afford one, please contact one of the local non-profit immigration legal services offices in your area. Second, you will need to prove that you and your spouse were free to marry, and provide copies of all prior divorce decrees or death certificates. Third, you may be asked to verify that you have not remarried since your spouse passed away. If you have remarried, read the FAQ in the LEGISLATION tab, since another section of the new law may apply to you. Finally, if you are not in the U.S. pursuant to a lawful entry (you entered without inspection), you must consult with an attorney very familiar with the new law as the new Section 204(l) may provide relief.
October 28, 2009 - Congress abolished the widow penalty through legislation. The information below is retained for historical purposes only, because the new law enacted upon President Obama's signature allows widows and widowers and their children to self petition for lawful permanent resident status. Please refer to the LEGISLATION tab for more information.
CLICK THE BUTTON FOR AN FAQ ON THE NEW LAW
Understanding the Issue - What is was the Widow Penalty?
Every year, a handful of surviving spouses and family members are deported because their U.S. citizen relative dies.
What is the widow penalty? In order to understand, it helps to learn about the process of becoming a Lawful Permanent Resident through marriage to a United States citizen. When a U.S. citizen marries a non-citizen, he or she may file a petition for that person to receive "immediate relative" status and be processed for Lawful Permanent Resident (LPR) status. LPR status is commonly referred to as the "Green Card." The non-citizen spouse may either apply for an immigrant visa abroad at a U.S. consulate, or if already in the United States, may apply for "adjustment of status" and be processed without leaving the country. One common misconception is that spouses of U.S. citizens are applying for citizenship - a non-citizen who gains LPR status through a spouse must reside in the United States as a resident for three years before applying for citizenship.
The immigration process often takes many months to complete. The married couple files the paperwork, then waits for the government to process. During bureaucratic processing, the non-citizen spouse may receive work authorization and travel permission. If an applicant is given resident status prior to the second wedding anniversary, the LPR status is called "conditional" and referred to as "Conditional Permanent Resident (CPR) status. CPR status is virtually the same as LPR status, with the condition that the couple file a simple form after two years attesting to the continuing validity of the marriage to remove the condition. In addition to showing the CPR is residing together in marital union with the citizen spouse, the CPR has the option of proving that the marriage was terminated through divorce but was entered into in good faith, or show abuse, or that the citizen spouse has died. This is the case even if the marriage never reached the two year mark.
With respect to the "widow penalty," the government takes the view that if the death occurs before the bureaucracy acts on the couple's applications (CPR status), even if the marriage is one day short of the two year wedding anniversary, the application can be denied because the applicant is no longer a "spouse." Yet, in a case that sees quick adjudication to CPR status, the government allows the CPR to file to remove the condition despite the death, even if the marriage only lasted (for example) three months! The members of Surviving Spouses Against Deportation believe that the term spouse encompasses a surviving spouse. The only Circuit Court to review this issue has agreed, as have three other federal District Courts.
The follow news account of Carla Freeman's case helps bring the widow penalty to "life" -
Parting's Bitter Sorrow After a Husband Dies, Citizenship Efforts Falter and Departure Looms The Oregonian Monday, November 29, 2004 JOSEPH ROSE
CLARKSTON, Wash. On a hill above the Snake River, the scars of Carla Arabella Freeman's American journey are carved into salmon-colored granite.
The gravestone belongs to Robert Glen Freeman, her late husband. "Li'l Bob," it reads. "Lived, loved, laughed." Born: November 1974. Died: February 2002. It doesn't say anything about the struggle that followed.
Saturday morning, the 27-year-old widow knelt on the dry yellow leaves blanketing the grave, sobbing as Robert's round, friendly face smiled back from a photo embedded above his name.
The wind picked up, and the pine trees bent and sighed. A tiny U.S. flag sticking out of a flower pot began to dance. Carla Freeman shivered.
"I'm leaving," she said, with a heavy South African accent. "But I will be back."
She couldn't promise when the next whispered conversation on the hillside will happen. It could be at least a decade before the U.S. government allows the West Linn woman to visit her husband's grave again.
On Wednesday, Freeman, whose fight against deportation by U.S. immigration officials has gained international attention, will return to Nelspruit, South Africa, to be with her aging parents. Both, she said, have been seriously ill.
It's tough. And unfair, she said.
She fell in love with a man, his family and his country. She complied with all the rules on the road to citizenship, starting with marrying Robert in 2001. But then her husband died in a car wreck, and she was ordered to leave.
Before they shackled and handcuffed Freeman in May, immigration officers explained that her husband's sudden death made her ineligible to be a citizen. They hadn't been married for two years, as federal law requires.
Freeman's attorney, Brent Renison, won her conditional release as he prepared to take the case before the 9th U.S. Circuit Court of Appeals in January. One of the conditions: If she left the country on her own, she would be banned for 10 years. No entry, not even for a short visit.
By leaving, Freeman is effectively deporting herself, Renison said, adding that the case has disgraced the U.S. government.
"I think we have a responsibility to Robert to take care of his widow. If she wants to live in the country where they made his home, she should be allowed."
Freeman, a petite redhead with striking blue eyes, entered the country legally, carrying an Italian passport because her father is from Italy.
There was a time when she wasn't interested in visiting America. She didn't like what she saw of U.S. tourists and businesspeople walking into the South African hotel where she once worked.
Giant egos and an even bigger sense of entitlement, like they ruled the world, she said.
Then came a job offer. In 1999, she agreed to work as an au pair for a family in Chicago. She would go to give the United States another chance. A two-year "experience" and back home, she told herself.
It was in Chicago that she met Robert Freeman, a guy as American as the Washington State Cougars football team he cheered every fall and the Costco where he worked five days a week.
He came to embody America for her: optimistic, playful, hardworking, devoted to his family.
They met in a karaoke bar. "Fortunately, he wasn't singing," she said, giggling. "He told me about where he grew up and a lot about his family. He was also really interested in where I came from."
He was the youngest of three children raised by a single mom who worked in a Clarkston bullet factory. In high school, he wrestled and was known as a jokester. After graduation, he started working at the local Costco, selling tires. Eventually, he was promoted to a management job in Chicago.
She was the daughter of a retired army chef. Her mother was English. They lived near one of Africa's largest wildlife reserves, where elephants and zebras roam. Dad was a Sicilian but not as strict as most, she assured Robert.
After several months of dating, Robert traveled to South Africa and asked Carla's father for permission to marry her. The couple married in Chicago and moved to Indiana, where Robert had been sent to manage a new Costco.
He had started teaching her how to drive. He came home every day to eat lunch with her. She said he was often tired yet always happy. They were enjoying carefree weekends but had started talking about having children.
Feb. 5, 2002, was supposed to be Robert's day off, but his supervisors were in town to walk through the store. He wanted to be there.
That morning, on a Merrillville, Ind., highway, a Pepsi truck collided with his car, crushing him. The rig then jackknifed, smashing into another car and killing the car's 21-year-old woman driver.
Robert and Carla had been married 11 months.
On a night last week, Carla Freeman sat in a Clarkston restaurant, once more describing that day as friends and members of Robert's family listened stoically.
She recalled the details of the coroner showing up at her door and the burial in Clarkston without weeping. "I'm pretty strong," she said. "Really."
Robert's sister, Chris DeWitt, reached across the table and gripped Freeman's hand in hers. Freeman lamented how she is now giving up the fight. Meanwhile, she said, the man driving the Pepsi truck hasn't apologized.
After minutes of silently nodding, DeWitt registered her disgust: "Crossed the yellow lines, killed two people and didn't get as much as a sneeze. Driver's error, they called it."
Still trying for citizenship
Freeman still wanted to be a U.S. citizen. She moved to Clarkston, where she lived with DeWitt and her husband and their three daughters. Dewitt and her girls all had Robert's laugh and those big Freeman family cheeks. Carla found life there comforting.
The girls call her "auntie" and fell in love with everything about her, from the accent to the stories from South Africa.
Inside the restaurant, Freeman's youngest niece, 7-year-old Sammy Jo, pressed her nose against the glass of an aquarium. Dressed in a summer dress and blue sweater, the ponytailed girl laughed as the clown fish chased each other.
"I told her I would never leave her," Freeman said, glancing at the girl. "She remembers that" -- tears began rolling down her cheeks -- "Why am I the one being punished for what happened?"
In January, she moved to the Portland area to try to find a job.
Within days, she was summoned to Seattle, where immigration officials told her they planned to deny her application to become a permanent resident. They told her she had 30 days to leave.
U.S. Sen. Gordon Smith's staff got her a second interview in Portland, where the officer behind the desk stopped Renison before he had finished pleading his client's case. "He handed us a piece of paper and said, 'Here's your letter of denial,' " Freeman recalled. "Then he said, 'Some people are waiting for you.' "
"They took me down a long corridor. They took away my jewelry. They shackled my legs and put me in a tiny cell," she said. "I was in there for seven hours."
Deportation seems certain
U.S. District Judge Owen Panner blocked the deportation order. But after a June 17 hearing, Panner said he had no choice but to deport Freeman.
Renison responded with an appeal, which he promises to push forward in Freeman's absence. "It's sad to see Carla go," he said, "but this embarrassing flaw in the law must be addressed."
The two-year rule was designed to fight sham marriages. Widows and widowers can apply for a green card, but only if they were married for at least two years before their spouse's death.
Renison plans to continue lobbying Oregon's congressional delegation to change the law. He said Freeman had fewer appeals options than someone who arrived in the United States illegally.
Until two months ago, Freeman swore not to budge until she was forced out of the country. But on a September afternoon, after a long visit to Robert's grave, she realized it was time to go.
Freeman feared that one or both of her parents might die while she waited in America. She wanted to go home and see them for Christmas. She also felt like a prisoner, having to get permission from the government just to visit her husband's grave.
Saturday was Robert Freeman's birthday. After setting red roses at his grave, she asked her nieces to sing "Happy Birthday" with her.
Snowflakes began to fall. That's Robert, she said. The weekend before he died, he promised to show how to make a snowman.
It's summer in South Africa, she said. "I know Robert will be with me there," she said. "I'm splitting him in half."
And she is leaving a kiss for him, forever carved in his gravestone on the hill above the river: "Ek is lief vir jou."
It's Afrikaans, a language of South Africa, she said. "It means 'I love you.' "