Marriage to a US citizen does not automatically provide citizenship. Spouses of US citizens can apply for naturalization after three years of living in the United States as long as they remain married and can prove that they reside in the same household as their citizen spouse. Naturalization is the process by which US citizenship is granted to a lawful permanent resident after meeting requirements established in the Immigration and Nationality Act (INA).
As a general rule, a lawful permanent resident can apply for naturalized citizenship after being a green card holder for at least five years. However, spouses of US citizens can apply sooner, at three years of being a permanent resident. But what happens when the US citizen spouse dies? Fortunately, it is still possible for the widowed spouse to obtain a green card and eventually become a US citizen.
The widow penalty
Prior to October 28, 2009, the United States Citizenship and Immigration Services (USCIS) required the surviving spouse to be married for at least two years before the US citizen spouse passed away before they could apply for a green card. This requirement was in an effort to prevent fraudulent marriages for the purpose of green card eligibility. This rule, known as the “Widow’s Penalty,” was considered unfair and unjustly penalized the widow(er) in the case of the untimely death of their US citizen spouse.
USCIS has since removed the two-year marriage requirement, so surviving spouses can now apply for permanent residence in the United States as long as they meet the basic requirements of the I-360 Petition for American citizens, widows, or special immigrants. This petition informs USCIS that a person was married to a US citizen who recently died and that they are interested in pursuing a green card based on that marriage. Petition eligibility requires that:
- You were lawfully married to a US citizen
- The marital relationship was made in good faith
- You did not marry for immigration benefits
- There are no inadmissibility criteria against you or your spouse
You also must be able to provide the following:
- Proof of your late spouse’s US citizenship
- A copy of your marriage certificate
- Proof you or your late spouse terminated any prior marriages (if applicable); and
- A copy of your late spouse’s death certificate
According to USCIS, where you file depends on “your eligibility category, where you live, and whether you are also filing Form I-485, Application to Register Permanent Residence or Adjust Status, at the same time (known as “concurrent filing”). For more information, visit the USCIS website or consult with a reputable immigration attorney.
What happens to your pending green card petition when your spouse dies?
If Form-I-130 (alien relative petition) is filed, it will be converted to Form I-360 (Petition for Amerasian, Widow(er), or Special Immigrant). The petition can include any children under the age of 21 or unmarried children. You cannot be separated or divorced from the deceased spouse and cannot marry another individual since that will negate the application.
You can also file a Form 1-485 Residence or Adjust Status with your Form I-360 or after you have filed Form I-360 (or if your converted Form I-130), whether it is pending or approved. The purpose of Form 1-485 is to prove that you are eligible for US permanent residency. If you already filed Form I-485 based on the petition your spouse filed, USCIS will continue to process this application, and you do not need to file another one. If you were awaiting application approval when your spouse died, you would not acquire any more days of unlawful presence while waiting for the USCIS to rule on a case.
If you live outside of the United States and your Form I-130 is pending, your application is converted to a Form I-360 petition. Once the application is approved, USCIS will send the application to the National Visa Center. In most cases, you must complete Form DA-260 (Online Immigrant Visa and Alien Registration Application) when applying for a green card outside the United States. Filing will go through USCIS and the National Visa Center (NVC). After completing the form, the NVC will forward your case to a local US embassy or consulate.
Can you apply for a green card after your spouse dies?
As a spouse of a deceased US citizen, you may file a petition on your behalf based on the following conditions:
- You were married to a US citizen who is now deceased and who was a US citizen at the time of death
- Your citizen spouse died less than two years before the date on which you file the petition
- You were not legally separated from your citizen spouse at the time of death; and
- You have not remarried
- You must reside legally in the consular district of the US Embassy or Consulate at which you are requesting to file
- You must be able to remain in the country where the Embassy or Consulate is located for the time it takes to process the visa
It is important to note that you have a period of two years, counted from the death of your spouse, to fill out and submit Form I-360 (Petition for Amerasian, Widow(er), or Special Immigrant). If you were living apart at the time of your spouse’s death, you may still be able to apply if you do not have a court-ordered legal separation.
What happens to your Form I-751 when your spouse dies?
Every marriage-based green card applicant who has been married for less than two years receives a conditional green card, also known as “conditional permanent residency.” The conditional residence is only valid for two years, and Form I-751 (Petition to Remove Conditions on Residence) would need to be filed before the conditional residency expires.
If your spouse dies before you can remove the conditions on your permanent residency, your Form I-751 will need to include a copy of your spouse’s death certificate and any evidence of the life you shared together. An immigration attorney can help to verify the appropriate documentation.
You can file your Form I-751 any time between when your spouse dies and when your conditional green card expires without waiting for the required 90-day window prior to expiration. Below is a list of items you need to prepare to file with your request.
- A copy of your spouse’s death certificate
- A written statement specifically asking USCIS “to approve the petition under section 204(l)” despite your relative’s death. There is no specific form or fee to make this request.
- Proof that you resided in the US at the time your spouse died and that you continue to live in the US
- Any new proof that your marriage was entered into in good faith, specifically new documents you obtained after filing Form I-751. This includes recent joint bank statements, new utility bills, and tax returns.
Can you file for citizenship after your spouse dies?
Typically, if you have a green card and are a spouse of a US citizen, you are eligible for citizenship after three years of continuous residence in the United States. Unfortunately, if your spouse dies before three years, you must meet the full naturalization requirement of five years.
Although the Immigration and Nationality Act doesn’t state this directly, it is referenced in the Code of Federal Regulations (8 CFR § 319.1(b)(2)(i).), which states: “A person is ineligible for naturalization as the spouse of a United States citizen under Section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated.”
If you had filed an N-400, Application for Naturalization, before your spouse died, USCIS policy states, “An applicant is ineligible to naturalize as the spouse of a US citizen if the US citizen dies any time prior to the applicant taking the Oath of Allegiance.”
As a widow(er) of a US citizen, you can naturalize as a citizen if you meet all of the following requirements:
- Are at least 18 years old
- Lived within the same state for at least three months before filing the application
- Met the 5-year continuous residence requirement
- Met the 30-month physical presence requirement
- Able to pass the English test as well as the US civics test
- Is a person of good moral character
If you are a surviving spouse of a deceased US service member who was killed in combat, there are separate immigration benefits under section 1703 of Public Law 108-136. In addition, you may self-petition for “immediate relative” Status on Form I-360. For more information, visit USCIS Widow(er) page.
Can I receive my deceased US citizen spouse’s Social Security benefits?
Whether you’re in the process of obtaining your green card or citizenship, you may still qualify to receive your deceased spouse’s social security benefits. Social Security is a federal program that provides financial security for retired workers and their families. According to the Social Security Administration, “Social Security replaces a percentage of a worker’s pre-retirement income based on their lifetime earnings. The amount of the average wages that Social Security retirement benefits replace depends on the US citizen’s earnings and when they choose to start benefits.”
For you to start receiving the benefits on behalf of your deceased US citizen spouse, the following must be true:
- You and your spouse must have been married for at least nine months. This is waived if your spouse dies while serving active military duty.
- Your spouse has contributed to Social Security for at least ten years.
- Your spouse had reached retirement age before their death. Currently, the full retirement age is 66 if born from 1943 to 1954. For anyone born in 1960 or later, full retirement benefits are payable at age 67.
- You must be at retirement age
Social security benefits are also dependent upon the country you live. You may not claim US Social Security benefits while living in Cuba or North Korea. In addition, the US cannot send payments to:
- Azerbaijan
- Belarus
- Kazakhstan
- Kyrgyzstan
- Moldova
- Tajikistan
- Turkmenistan
- Uzbekistan
Upon leaving any of the listed countries, you can claim the withheld social security payments, except for Cuba and North Korea. However, we recommend you consult a tax professional concerning Social Security benefits.
When it comes to green card applications and naturalization, a reputable immigration attorney can guide you through the intricacies of the process, ensure you avoid time-consuming missteps, and provide knowledgeable advice on any required documentation. In addition, the green card and citizenship process is complicated and can be challenging if you have a spouse who passed away. An immigration lawyer can help relieve the burden of navigating the US immigration system alone.
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Stump & Associates is Oklahoma City’s most respected immigration law firm. With more than 30 years of experience, we know how to handle cases just like yours.
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