The Two-Year Rule of Immigration Status for Widows or Widowsers of U.S. Citizen

Question:

My U.S. citizen husband died last month. The Form I-130 application for my immigration has been approved by USCIS. What can I do for my immigration status in United States?

Answer:

The widow or widowers often find themselves facing not only the loss of a loved one - U.S. citizen, but an absence of immigration options and the risk of removal or deportation from the United States. This has resulted in various legal challenges and proposed legislation.

There can be serious immigration problems faced by surviving foreign national spouses of U.S. citizens, if the U.S. citizen dies before the marriage has lasted at least two years. The issue surrounds options available to the widow or widower of a U.S. citizen, if his or her marriage was not marked by at least a second anniversary at the time of the U.S. citizen's death. But these problems do not exist for foreign national spouses who have been granted permanent residence.

If the marriage has endured for at least two years, there is an option for the widow or widower to self-petition for immigration relief. Additionally, there is an option if the marriage was less than two years in duration, but a Petition for Alien Relative (Form I-130) should be approved before the death.

The general rule is that an I-130 petition is automatically revoked if the petitioning relative dies. There is an exception that can be granted on humanitarian grounds if the I-130 petition was approved before the death.

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