Prior to October 28, 2009, if you lawfully entered the United States based on marriage to your citizen-spouse, and you were married for less than two years when your spouse died, you could not immigrate as a widow or widower.
However, this was recognized as patently unfair. Now those who enter the United States based on marriage can still seek a Green Card as a widow(er) even if their spouse dies within two years of their marriage.
Requirements for widow(er) immigration
To immigrate as a widow(er), you must meet the following requirements.
First, you must have been lawfully married to your now-deceased citizen spouse.
Second, you must have married in good faith. This means you did not marry just to get a Green Card, with the intention of it being a sham marriage.
Seeking citizenship after becoming a widow(er)
If you remarry following your citizen-spouse’s death, you cannot seek citizenship as a widow(er).
If you did not have a Form I-130 on file when your citizen-spouse passed away, you can still seek a Green Card. To do so you must file Form I-360. The Form I-360 must be filed within two years of your citizen-spouse’s passing.
If your Form I-130 was already filed before your citizen-spouse passed away, it will automatically convert to a Form 1-360, and you do not need to have a second petition for citizenship filed to obtain a Green Card.
It is only fair that those who entered the United States and applied for a Green Card based on a valid marriage should be able to obtain that Green Card even if their spouse passes away. Death is tragic, and it would only be made worse if you could no longer remain in the country that you now call home.