A foreign national widow or widower who was married to an American citizen for less than two years prior to October 28, 2009 is eligible to file a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant; however, the deadline for that filing is October 28, 2011. Widow(er)s with pending I-130s, Petitions for Alien Relative, filed prior to the death of the spouse will automatically have their cases converted to an I-360 petition.
On October 28, 2009 a new law was enacted that eliminated the requirement that widow(er)s of U.S. citizens to be married for at least two years before becoming eligible to file an I-360. (Immigrants who were married for more than two years are governed by other provisions.) Under the 2009 provisions, a surviving spouse who was married a U.S. citizen for less than two years at any time in the past and who has not remarried can apply for his or her green card but may have to do so during the law’s transitional period, October 28, 2009 to October 28, 2011. In other words, if widow(er)’s spouse passed away prior to October 28, 2009, he or she is still eligible to apply for immigration benefits but is required to file by October 29, 2011. If the U.S. citizen spouse passed away on or after October 28, 2009, the I-360 must be filed within two years of the U.S. citizen’s death. USCIS advises that if a case was denied prior to October 28, 2009 based on evidence of less than two years of marriage, it may be considered a pending case.
Please contact our office if you believe your case would apply or seek related advice.