Widow or Widower Adjustment of Status

Can a widow or widower of a U.S. citizen still get a green card?

See Immediate Relative Adjustment of Status.

The old two-year marriage requirement was eliminated

Older immigration materials may state that the citizen and surviving spouse must have been married for at least two years before the citizen died.

That is no longer the statutory rule.

Congress eliminated the former two-year marriage-duration requirement in 2009.

Basic widow or widower eligibility

A self-petitioning widow or widower generally must establish that:

• The deceased spouse was a U.S. citizen at the time of death;
• The petitioner and surviving spouse were legally married;
• The marriage was bona fide and not entered solely for immigration purposes;
• The spouses were not legally separated at the citizen's death;
• The surviving spouse has not remarried while seeking widow(er) classification;
• Form I-360 was timely filed when a self-petition is required; and
• The surviving spouse is otherwise eligible to immigrate or adjust status.

If the U.S. citizen already filed Form I-130

If the U.S. citizen spouse filed Form I-130 before death, a new widow(er) I-360 generally is not required.

Under 8 C.F.R. §204.2(i)(1)(iv), the spousal Form I-130 generally converts automatically to a widow(er) Form I-360.

This applies whether the I-130 was:

• Pending when the citizen died; or
• Already approved before the citizen died.

If no Form I-130 was filed before death

The surviving spouse generally files Form I-360 as a widow or widower self-petitioner.

The petition ordinarily must be filed no later than two years after the U.S. citizen spouse's death.

Evidence generally includes:

• Marriage certificate;
• Proof of termination of all earlier marriages;
• Proof that the deceased spouse was a U.S. citizen;
• Death certificate;
• Evidence of a bona fide marriage; and
• Other evidence requested by Form I-360 or USCIS.

Concurrent Form I-360 and Form I-485 filing

A qualifying widow or widower physically in the United States may generally file Form I-485:

• Together with Form I-360;
• While Form I-360 is pending; or
• After Form I-360 is approved.

If the deceased spouse had already filed Form I-130, the surviving spouse can generally proceed with Form I-485 based on the converted petition if otherwise eligible.

See Visa Availability and Filing.

Inspection and admission or parole

A widow(er) seeking ordinary adjustment under INA §245(a) generally must still satisfy the threshold adjustment requirements.

That commonly includes proof of:

• Inspection and admission;
• Parole; or
• Another statutory basis permitting adjustment.

Evidence can include:

• Form I-94;
• Passport admission stamp;
• CBP records;
• Parole document;
• Wave-through evidence; and
• Other evidence proving a qualifying entry.

See Evidence of Admission or Parole.

Overstay and unauthorized employment

A qualifying widow or widower of a U.S. citizen is classified as an immediate relative.

Immediate relatives are exempt from important INA §245(c) bars involving:

• Visa overstay;
• Failure to maintain lawful status;
• Being out of status at filing; and
• Unauthorized employment.

See Immediate Relative Adjustment Bar Exemptions.

Remarriage

The widow(er) classification under INA §201(b)(2)(A)(i) generally continues only until the surviving spouse remarries.

Therefore, remarriage can terminate eligibility under the widow(er) self-petition route.

The consequences of remarriage therefore depend on whether the case is proceeding through:

• The widow(er) classification itself;
• A converted Form I-360;
• A preserved Form I-130 under INA §204(l); or
• Another immigrant basis.

INA §204(l) surviving-relative protection

INA §204(l) provides a broader surviving-relative mechanism in certain cases where a qualifying relative dies.

For a qualifying surviving relative, USCIS can continue adjudicating a petition and related adjustment application notwithstanding the death if the statutory residence requirements are satisfied.

In general, at least one qualifying beneficiary must have:

• Resided in the United States when the qualifying relative died; and
• Continued residing in the United States.

Children of the widow or widower

Qualifying children of the surviving spouse can be included in the widow(er) immigration process.

Important issues include:

• Whether the person meets the INA definition of child;
• Age when the qualifying petition was filed;
• Marital status;
• CSPA protection;
• Whether Form I-130 had already been filed by the deceased citizen;
• Automatic inclusion in a converted I-360 where applicable; and
• Whether a separate immigrant petition is required under another surviving-relative route.

See Child Status Protection Act and Form I-485.

Form I-864 is generally not required for the widow(er) classification

A self-petitioning widow or widower and qualifying accompanying children are generally exempt from the Form I-864 Affidavit of Support requirement.

See Form I-864 Exemptions.

Bona fide marriage still must be proven

The death of the petitioning spouse does not eliminate the requirement to establish that the marriage was genuine.

Evidence may include:

• Joint residence;
• Joint bank accounts;
• Tax returns;
• Insurance;
• Joint property;
• Children;
• Travel records;
• Photographs;
• Correspondence;
• Affidavits from family and friends;
• Medical records identifying the spouse;
• Estate or probate records; and
• Evidence concerning care provided during the citizen spouse's final illness.

Conditional residence

A person immigrating through the statutory widow(er) classification is not treated as an ordinary newly married spouse receiving conditional residence simply because the marriage was less than two years old when the citizen died.

Inadmissibility still applies

Widow(er) classification does not eliminate the ordinary grounds of inadmissibility.

USCIS may still examine:

• Health grounds;
• Criminal history;
• Controlled-substance issues;
• Fraud or willful misrepresentation;
• False claim to U.S. citizenship;
• Prior removal;
• Unlawful presence;
• Alien smuggling;
• Security grounds; and
• Other INA §212 provisions.

Where a waiver is available, the effect of the citizen spouse's death and INA §204(l) should be analyzed carefully.

Waivers after the qualifying spouse dies

INA §204(l) can preserve certain related waiver applications when the deceased person had also been the qualifying relative for the waiver.

USCIS policy recognizes that in qualifying §204(l) cases, the death can be treated as the functional equivalent of the required extreme hardship to the deceased qualifying relative for certain waiver purposes.

If Form I-485 was already pending when the citizen died

Do not withdraw or abandon the adjustment application merely because the petitioner died.

The surviving spouse should generally:

• Notify USCIS of the death;
• Submit the death certificate;
• Determine whether the I-130 converts automatically;
• Determine whether widow(er) classification remains available;
• Determine whether INA §204(l) also applies;
• Update Form I-864 treatment if necessary;
• Update the medical examination if required;
• Address any waiver issue;
• Continue responding to USCIS notices; and
• Prepare for an interview if USCIS requires one.

When death occurs while Form I-485 is already pending, the effect should be analyzed together with the rules governing other major family changes during adjudication. See Marriage, Divorce or Death While I-485 Is Pending.

If the surviving spouse is in removal proceedings

Jurisdiction must be analyzed before filing Form I-485.

For a non-arriving respondent:

• The immigration judge generally has adjustment jurisdiction;
• USCIS generally retains jurisdiction over Form I-360 or Form I-130;
• The respondent may seek a continuance while USCIS adjudicates the underlying petition; and
• The court can adjudicate adjustment once the necessary immigrant basis exists.

See Adjustment of Status While in Removal Proceedings.

Example: citizen filed I-130 before death

Example: no I-130 was filed

Example: surviving spouse remarries

Widow or widower adjustment checklist

• Confirm deceased spouse was a U.S. citizen at death.
• Obtain death certificate.
• Obtain marriage certificate.
• Obtain prior divorce or death records.
• Confirm spouses were not legally separated at death.
• Determine whether Form I-130 was already filed.
• If no I-130, calculate two-year Form I-360 deadline.
• Determine whether surviving spouse has remarried.
• Analyze INA §204(l) separately if relevant.
• Prove bona fide marriage.
• Identify qualifying children.
• Analyze CSPA.
• Confirm admission or parole for ordinary §245(a).
• Apply immediate-relative §245(c) exemptions.
• Analyze inadmissibility.
• Identify waivers.
• Apply Form I-864 exemption correctly.
• File or continue Form I-485.
• Review employment authorization.
• Review advance parole before travel.

Common widow(er) adjustment mistakes

Primary authorities

Related INA245.com guides

Frequently asked questions