Yes, you can, but there are strict time limits that must be complied with or you waive your rights under the law. Until late 2009, the law provided that the petition was automatically denied upon the passing of your U.S. Citizen spouse. The was referred to as the “widow penalty”.
However, myself and a few other litigating immigration attorneys successfully brought suit against USCIS alleging that the agency was misinterpreting the law and that the death of a U.S. Citizen spouse should not result in the automatic denial of the late spouse’s petition. You can learn more about my case by reviewing the “Cases” section of my Avvo profile (MacLean v. Napolitano). As a result of these cases Congress changed the law to eliminate the Widow Penalty provided the alien makes a timely application for benefits. Thus, time is of the essence.
A widowed alien must file an application for benefits within 2 years of the U.S. Citizen spouse’s death. If you spouse passed away prior to October 28, 2009, you must file a widow petition no later than October 28, 20111. Otherwise, the widow petition must be filed within 2 years of your spouse’s death.
I strongly recommend that you consult with an immigration attorney who has experience in these types of cases. Failure to timely or properly file your case can result in the denial of your petition and deportation from the United States.
While written by an attorney who is a Florida Bar Certified Specialist in Immigration and Nationality Law, the statements herein should not be construed as legal advice. No attorney/client relationship has been created without a formal consultation with the attorney and the attorney has agreed to accept your case.
the petition needed to be approved before she passed.
Please be advised this answer is for informational purposes only and no attorney-client relationship has been formed. You should also see a local attorney for legal advise before acting on any of the statements given to you online as there may be aspects of your case that are not obvious by the question asked online.
You probably can still get the green card.
Forms do not magically change from one to the other.
You should retain an experienced immigration lawyer to review all the facts and advise you accordingly.
J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship.
If you were married to your wife less than two years at the time you wife passed away, you may still be able to apply for your green card. If you were married to your wife for more than two years at the time she passed away, then the bill signed into law by President Obama in October of 2009 may not be able to help you. There is a deadline that is coming up in October of 2011 and it may apply to you. You need to consult with an experienced immigration attorney to determine if you qualify for benefits.
The answer provided is general in nature and because not all facts are known, it should not be construed as legal advice. The answer does not create an attorney/client relationship. (714) 560-0040