Widow/er Guide

Hypnos · January 10, 2013

I wondered if there was any interest here in having me write up a guide for widow/er immigrant visas and AoS.

This is something I know a little about, and the existing stickied thread on the Effects of Major Changes forum here: http://www.visajourney.com/forums/topic/293551-change-of-status-as-widower/ is a little out of date.

If I wrote something to help anyone else unfortunate enough to find themselves in a similar situation, would that be ok?

Granted it's a niche area, but I would have appreciated finding something like it a year ago, where I had to pretty much fend for myself.

Nich-Nick · January 10, 2013

I wondered if there was any interest here in having me write up a guide for widow/er immigrant visas and AoS.

This is something I know a little about, and the existing stickied thread on the Effects of Major Changes forum here: http://www.visajourney.com/forums/topic/293551-change-of-status-as-widower/ is a little out of date.

If I wrote something to help anyone else unfortunate enough to find themselves in a similar situation, would that be ok?

Granted it's a niche area, but I would have appreciated finding something like it a year ago, where I had to pretty much fend for myself.

I think it would be a helpful addition to the Guides page.

Captain Ewok · January 10, 2013

I would be very grateful if you did. I think it would help many people!

Hypnos · January 10, 2013

I shall get to work on it then

Hypnos · January 15, 2013

This guide will explain how to legally immigrate to the United States if you are the widow/er of a US citizen.

Following the passage of Public Law 111-83 through Congress in 2009, a widow/er who was married to a US citizen at the time of their death no longer needs to have been married for at least two years in order to be able to immigrate to the United States on that basis. The so-called "widow penalty" was ended upon enactment of that law.

Note: Most of the information here applies equally for both adjustment of status and widow/er immigrant visas, except where noted.

I. Eligibility for Adjustment of Status as a Widow/er of a US Citizen

You are eligible to file for adjustment of status as a widow/er, if:

(1) You were legally married to someone who was a US citizen at the time of their death.

and

(2) You can prove that the marriage was bona fide and was not entered into solely to confer immigration benefits on the alien.

and

(3) You entered the United States legally (with inspection).

Note 1: you can still file even if out of status, as widow/ers remain immediate relatives of a US citizen and so any overstay is not penalised at the time of adjudication.

Note 2: This obviously does not apply to widow/ers seeking an immigrant visa from outside of the US.

and

(4) You were not separated from your US citizen spouse at the time of their death.

and

(5) You have not remarried.

and

(6) You are filing within two years of the death of your US citizen spouse.

Note: your application does not need to be adjudicated within two years of the spouse's death, but you must have filed within two years of the spouse's death.

II. Required Forms

You must download and complete an I-360 (http://www.uscis.gov/i-360), Petition for Amerasian, Widow(er), or Special Immigrant, as well as an I-485 (http://www.uscis.gov/i-485), Application to Register Permanent Residence or Adjust Status.

Usually, immigrants are required to provide an Affidavit of Support (using an I-864) to show that they have a financial sponsor within the US. Widow/ers though, are exempt from this requirement. A widow/er seeking permanent residency need only provide an I-864W ("waiver") (http://www.uscis.gov/i-864w) to show that they are not required to file an I-864.

You must also complete two copies of a G-325A (http://www.uscis.gov/g-325a), Biographic Information (one to support the I-360 and the other to support the I-485).

You also need to enclose a sealed I-693 (http://www.uscis.gov/i-693), Report of Medical Examination and Vaccination Record, completed by a civil surgeon. You can find a list of civil surgeons near your location by entering your zip code into https://egov.uscis.g...ffice_type=CIV.

III. Optional Forms

There are two optional forms that you should consider filing at the same time. These are an I-765 (http://www.uscis.gov/i-765), Application for Employment Authorisation, and an I-131 (http://www.uscis.gov/i-131), Application for Travel Document.

Applying for an Employment Authorisation Document on an I-765 will allow you to work legally until your adjustment of status application is finally adjudicated. As part of this, if you do not already have a social security number then you can present your EAD to your local Social Security Administration office, together with a completed application for a social security card, and you will receive your card and number in the mail a week or two later.

Applying for Advance Parole using an I-131 is sometimes more tricky. It will allow you to depart and re-enter the United States while your applications are pending, but it will not overcome any overstay bars you have if you have been illegally present in the United States for at least six months. Six months of illegal overstay gives a three year bar, and one year of overstay gives you a ten year bar. These bars are only triggered upon departing the United States, so if you have at least six months of overstay then you should not apply for an I-131, and simply wait until your green card is in your hands. If you have no overstay issues then you should be fine to leave and re-enter the US using your Advance Parole until your applications are finally adjudicated.

It should be noted that there is no charge for either an I-131 or an I-765 when filed concurrently with, or subsequent to, a supporting I-485, and these can be renewed (for free) as many times as you need them to be until your applications are adjudicated.

IV. Initial Evidence

Together with the forms detailed above, you will also need to enclose the following documents with your packet:

(1) A copy of your marriage certificate issued by the appropriate civil authority. You should also enclose proof of termination of any prior marriages for either spouse (certified copies of divorce decrees, certified copies of death certificates, court orders showing a grant of annulment, etc.). [Required for I-360]

(2) Evidence that the non-alien spouse was a US citizen (this could be (i) a certified copy of their birth certificate, (ii) a copy of the biographical page of their US passport which was valid at the time of their death, or (iii) a copy of their naturalisation certificate, if they were a naturalised US citizen). [Required for I-360]

(3) A certified copy of the death certificate of the US citizen spouse, issued by the appropriate civil authority. [Required for I-360]

(4) A certified copy of the alien's birth certificate, issued by the appropriate civil authority. [Required for I-485]

(5) Proof of legal entry to the United States (this should be a copy of the most recent I-94 issued to the alien, if possible). [Required for I-485]

(6) A copy of the alien's nonimmigrant US visa if they have received a visa from a US post within the past year. [Required for I-485]

(7) Details of the alien's criminal record: [Required for I-485]

If arrested but no charges were brought.

A statement from the appropriate agency or a court, confirming that no charges were filed.

If arrested and charges were subsequently filed.

A court-certified copy stating the final disposition of the case (acquitted, convicted, etc.).

Note: For any traffic incident which did not involve alcohol or drugs, if you were not arrested you do not need to provide any documentation with regards to those incidents if the final penalty was either (i) Points on your driver's license, and / or (ii) a fine of less than US$500. You must still declare them, however.

(8) Evidence that your marriage was bona fide. This can include but is not limited to:

(i) Certified copies of birth certificates for children born to the alien and deceased US citizen spouse.

(ii) Evidence of co-mingling of finances (such as joint bank account statements, joint federal tax returns, joint life / health / property / vehicle insurance policies, etc.).

(iii) Copies of joint lease agreements / mortgages indicating shared property ownership or rental.

(iv) Any other documents indicating joint ownership or liabilities.

(v) Sworn affidavits from friends / family members that had personal knowledge of your marriage and can attest to its legitimacy.

(vi) Photographs of family members together (ideally the alien and US citizen spouse, but can also include children, gatherings, group events, etc. - often 15 - 20 photographs through the lifetime of the relationship will suffice).

(9) Up to 6 passport-style photographs (2 for the I-485, 2 for the I-765 (if you are filing it) and 2 for the I-131 (if you are filing it).

(10) A copy of the biographical page of your current, valid, foreign passport. [Required for I-765, if filing]

Important Note: you should only submit legible photocopies of all documents that you submit to USCIS, but you must have the originals on-hand for your interview as they may request to see them.

V. Final Steps

You should assemble the packet, keeping a form together with its required evidence, moving to the next form with its evidence, etc. Use paperclips to keep things together, not staples.

You can always check the latest filing fees at http://www.uscis.gov/fees but at the time of writing they are:

I-360 - US$405

I-485 - US$1,070 (including $85 fee for biometrics)

I-765 - Free

I-131 - Free

Enclose two cheques (one for the I-485, one for the I-360) payable to "U.S. Department of Homeland Security".

You should also enclose a cover letter, briefly itemising all of the forms you are enclosing, together with details of the evidence submitted. Make a complete copy of everything you submit (so you end up with two identical packets), and mail one of them to:

USCIS

Attn: I-360 & I-485

P.O. Box 805887

Chicago, IL 60680-4120

(for USPS deliveries)

USCIS

Attn: FBAS, I-360 & I-485

131 South Dearborn - 3rd Floor

Chicago, IL 60603-5517

(for FedEx / UPS deliveries)

You should expect to wait at least six months before hearing anything with regards to your case, although you should receive a biometrics appointment within the first few weeks after mailing your application.

Widow/ers seeking an immigrant visa should complete an I-360, together with its required initial evidence, and contact the Immigrant Visa Unit of the US foreign mission having jurisdiction over your place of residence, to see how they wish you to pursue your application.

Edited January 15, 2013 by Hypnos

Hypnos · January 15, 2013

Please find the guide above.

I'm sure you can break it off and sticky it in Effects of Major Change, if that's what you decide to do with it.

Hope this is useful.

TBoneTX · January 15, 2013

Great work, si man!

Captain Ewok · January 17, 2013

Excellent. Can we get a few folks to read though and peer review? I'd love to post this to help folks!

Thank you Hypnos!!

TBoneTX · January 18, 2013

Can we get a few folks to read though and peer review?

It looks great to me, apart from observing some (understandable) British spellings, z man.

I'll ask JimVaPhuong and pushbrk to look at it -- if they pass it, it passes, si man.

pushbrk · January 18, 2013

I'm not an expert on this new development but the guide posted for review only addresses adjustment of status. If an immigrant visa is also possible for a widow or widower, the process would obviously be different. Did you plan to address that separately?

Also, when adjusting status much of the supporting documentation is required for both the packages. So, for example if a marriage certificate is required for the I-360, another copy is required for the I-485. You need a separate list for each package.

Edited January 18, 2013 by pushbrk

Hypnos · January 18, 2013

I took the supporting documentation ("Initial Evidence") from the instructions for all forms.

A marriage certificate is not required for an I-485 unless you are adjusting from K-1 (I-485 instructions, page 4, section 12(B)).

The I-360 establishes your eligibility as a widow/er, and the marriage certificate is required evidence for that on that basis (I-360 instructions, page 2). There is no duplication on any Initial Evidence, unless where noted.

The guide is predominantly aimed at AoS, and is stated as such. I am not going to add anything further to it with regards to immigrant visas, so those references can be stripped out if necessary.

Edited January 18, 2013 by Hypnos

Hypnos · January 18, 2013

Actually while I think about it, I would like to add in the guidance that USCIS issued in 2009 following the change in the law, and I'd also like to add in information about the auto-conversion that occurs when a USC spouse dies after petitioning a spouse.

pushbrk · January 18, 2013

I took the supporting documentation ("Initial Evidence") from the instructions for all forms.

A marriage certificate is not required for an I-485 unless you are adjusting from K-1 (I-485 instructions, page 4, section 12(B)).

The I-360 establishes your eligibility as a widow/er, and the marriage certificate is required evidence for that on that basis (I-360 instructions, page 2). There is no duplication on any Initial Evidence, unless where noted.

The guide is predominantly aimed at AoS, and is stated as such. I am not going to add anything further to it with regards to immigrant visas, so those references can be stripped out if necessary.

I recommend including the marriage certificate with the I-485, whether required or not, but you're right, it is not specifically required. If you are not going to address immigrant visas for widow and widowers, such visas should not be mentioned in an AOS guide. My recommendation is that both paths should be addressed if one is.

Hypnos · January 18, 2013

Unfortunately there is not much information out there about widow/er AoS or widow/er immigrant visas. I know more about widow/er AoS because I am going through it now myself. Essentially what I can find about immigrant visas is that the embassy receives a completed I-360 and the immigrant visa unit processes it; that's about it.

Immigrant visas and AoS for widow/ers are rare already (which is mostly the reason I decided to put this together in the first place, since it didn't really exist anywhere else). Granted, it only affects a small amount of people (compared to a run-of-the-mill I-130 / I-485 for a husband and wife, which USCIS get literally thousands of every year), but when you're in this situation, the more information you have at hand, the better.

I will put a second draft up sometime tonight, incorporating some minor changes.

Hypnos · January 19, 2013

This guide will explain how to legally immigrate to the United States if you are the widow/er of a US citizen.

Following the passage of Public Law 111-83 through Congress in 2009, a widow/er who was married to a US citizen at the time of their death no longer needs to have been married for at least two years in order to be able to immigrate to the United States on that basis. The so-called "widow penalty" was ended upon enactment of that law.

Note: Most of the information here applies equally for both adjustment of status and widow/er immigrant visas, except where noted.

I. Eligibility for Adjustment of Status as a Widow/er of a US Citizen

You are eligible to file for adjustment of status as a widow/er, if:

(1) You were legally married to someone who was a US citizen at the time of their death.

and

(2) You can prove that the marriage was bona fide and was not entered into solely to confer immigration benefits on the alien.

and

(3) You entered the United States legally (with inspection).

Note 1: You can still file even if out of status, as widow/ers remain immediate relatives of a US citizen and so any overstay is not penalised at the time of adjudication.

Note 2: This obviously does not apply to widow/ers seeking an immigrant visa from outside of the US.

and

(4) You were not separated from your US citizen spouse at the time of their death.

and

(5) You have not remarried.

and

(6) You are filing within two years of the death of your US citizen spouse.

Note: your application does not need to be adjudicated within two years of the spouse's death, but you must have filed within two years of the spouse's death.

II. Required Forms

You must download and complete an I-360 (http://www.uscis.gov/i-360), Petition for Amerasian, Widow(er), or Special Immigrant, as well as an I-485 (http://www.uscis.gov/i-485), Application to Register Permanent Residence or Adjust Status.

Usually, immigrants are required to provide an Affidavit of Support (using an I-864) to show that they have a financial sponsor within the US. Widow/ers though, are exempt from this requirement. A widow/er seeking permanent residency need only provide an I-864W ("waiver") (http://www.uscis.gov/i-864w) to show that they are not required to file an I-864.

You must also complete two copies of a G-325A (http://www.uscis.gov/g-325a), Biographic Information (one to support the I-360 and the other to support the I-485).

You also need to enclose a sealed I-693 (http://www.uscis.gov/i-693), Report of Medical Examination and Vaccination Record, completed by a civil surgeon. You can find a list of civil surgeons near your location by entering your zip code into https://egov.uscis.g...ffice_type=CIV.

III. Optional Forms

There are two optional forms that you should consider filing at the same time. These are an I-765 (http://www.uscis.gov/i-765), Application for Employment Authorisation, and an I-131 (http://www.uscis.gov/i-131), Application for Travel Document.

Applying for an Employment Authorisation Document on an I-765 will allow you to work legally until your adjustment of status application is finally adjudicated. As part of this, if you do not already have a social security number then you can present your EAD to your local Social Security Administration office, together with a completed application for a social security card, and you will receive your card and number in the mail a week or two later.

Applying for Advance Parole using an I-131 is sometimes more tricky. It will allow you to depart and re-enter the United States while your applications are pending, but it will not overcome any overstay bars you have if you have been illegally present in the United States for at least six months. Six months of illegal overstay gives a three year bar, and one year of overstay gives you a ten year bar. These bars are only triggered upon departing the United States, so if you have at least six months of overstay then you should not apply for an I-131, and simply wait until your green card is in your hands. If you have no overstay issues then you should be fine to leave and re-enter the US using your Advance Parole until your applications are finally adjudicated.

It should be noted that there is no charge for either an I-131 or an I-765 when filed concurrently with, or subsequent to, a supporting I-485, and these can be renewed (for free) as many times as you need them to be until your applications are adjudicated.

IV. Initial Evidence

Together with the forms detailed above, you will also need to enclose the following documents with your packet:

(1) A copy of your marriage certificate issued by the appropriate civil authority. You should also enclose proof of termination of any prior marriages for either spouse (certified copies of divorce decrees, certified copies of death certificates, court orders showing a grant of annulment, etc.). [Required for I-360]

(2) Evidence that the non-alien spouse was a US citizen (this could be (i) a certified copy of their birth certificate, (ii) a copy of the biographical page of their US passport which was valid at the time of their death, or (iii) a copy of their naturalisation certificate, if they were a naturalised US citizen). [Required for I-360]

(3) A certified copy of the death certificate of the US citizen spouse, issued by the appropriate civil authority. [Required for I-360]

(4) A certified copy of the alien's birth certificate, issued by the appropriate civil authority. [Required for I-485]

(5) Proof of legal entry to the United States (this should be a copy of the most recent I-94 issued to the alien, if possible). [Required for I-485]

(6) A copy of the alien's nonimmigrant US visa if they have received a visa from a US post within the past year. [Required for I-485]

(7) Details of the alien's criminal record: [Required for I-485]

If arrested but no charges were brought:

A statement from the appropriate agency or a court, confirming that no charges were filed.

If arrested and charges were sebsequently filed:

A court-certified copy stating the final disposition of the case (acquitted, convicted, etc.).

Note: For any traffic incident which did not involve alcohol or drugs, if you were not arrested you do not need to provide any documentation with regards to those incidents if the final penalty was either (i) Points on your driver's license, and / or (ii) a fine of less than US$500.