Form I-360 Widow or Widower Petition Guide

USCIS (U.S. Citizenship and Immigration Services) has over a hundred different forms for immigrants who wish to pursue the American dream. With such a large selection, knowing which form is best for your situation can be difficult. Form I-360 is one of the many, and like the others, it’s the first step to acquiring your immigrant goals. It’s used for a few different reasons, one of which is for widows and widowers to petition for a green card.

In this guide, we’ll discuss how Form I-360 can benefit widows and widowers, other scenarios it can be used for, what types of immigrants are eligible, and everything else you need to know about this sometimes confusing process.

What Is Form I-360 for Widows and Widowers?

USCIS Form I-360 applies to several different types of immigration scenarios. If you’re married to a United States citizen but are from another country and don’t yet have a green card, your immigration status can become uncertain if your spouse passes away. Without your United States citizen spouse’s presence allowing you to stay in the country, you could face some immigration issues.

Legally married widows and widowers of U.S. citizens can petition for lawful permanent residency to obtain a green card if their spouse passes before they can file Form I-130 (Petition for Alien Relative). Form I-130 is filed by the U.S. citizen spouse, but if they pass before they initiate this process, the widow or widower can petition for a green card by filing Form I-360.

Who Is Eligible for Form I-360?

USCIS Form I-360 is used by various categories of individuals seeking immigration benefits. Each category has its own eligibility requirements. Below are the groups of people eligible to file Form I-360:

Widow(er) of a U.S. Citizen

If you were married to a U.S. citizen at the time of their death, you can file Form I-360 to self-petition for a green card.

Eligibility Requirements:
- You were legally married to a U.S. citizen at the time of their death.
- You file the petition within two years of their death.
- You have not remarried since their death.
- The marriage was bona fide (entered into for love and not for immigration purposes).

Abused Spouse, Child, or Parent (VAWA Self-Petitioners)

Under the Violence Against Women Act (VAWA), certain abused family members of U.S. citizens or lawful permanent residents (green card holders) can self-petition for immigration relief.

Eligibility Requirements:
- Spouse: You are the spouse of a U.S. citizen or lawful permanent resident and have been subject to battery or extreme cruelty.
- Child: You are an unmarried child under 21 who your U.S. citizen or lawful permanent resident parent has abused.
- Parent: You are the parent of a U.S. citizen who has subjected you to abuse or extreme cruelty.

Religious Workers

Individuals who are employed as ministers or in other religious vocations or occupations by a U.S.-based religious organization.

Eligibility Requirements:
- You must have been working for at least two years in a religious vocation or occupation immediately prior to filing.
- You are entering the U.S. to work full-time in a compensated religious role.

Special Immigrant Juveniles (SIJ)

Minors who are in the U.S. and require protection from a juvenile court due to forms of abuse, neglect, or abandonment by one or both parents.

Eligibility Requirements:
- A state juvenile court has declared that you cannot reunite with your parent(s) due to abuse, neglect, or abandonment.
- The court has determined it is not in your best interest to return to your home country.

Certain U.S. Military Members

Filipino veterans who served in the United States military during World War II may file Form I-360 for certain immigration benefits. Afghans or Iraqis who worked for the U.S. government or U.S. military may file Form I-360 for permanent residency.

Eligibility Requirements:
- Afghans or Iraqis employed as translators or interpreters for the U.S. government.
- Individuals who worked for or with the U.S. military or in support of U.S. operations.

Amerasians

Amerasian children born in certain Asian countries (primarily Vietnam) between 1951 and 1982 and fathered by U.S. citizens may be eligible for benefits through Form I-360.

International Broadcasters

Employees of the U.S. Agency for Global Media or its grantees who are involved in international broadcasting services may use Form I-360 to apply for special immigrant status.

How Do Widowers or Widowers File Form I-360?

If you are the widow or widower of a United States citizen, you are most likely eligible to self-petition for a green card using Form I-360. This form allows you to continue the immigration process without needing a sponsor if you meet specific requirements. To qualify, you must have been legally married to a U.S. citizen at their death, file the petition within two years of their passing, and have not remarried. Below are the detailed steps to file Form I-360 as a widow(er) of a U.S. citizen:

Step-by-Step Guide

1. Confirm Eligibility

Ensure that you were legally married to a United States citizen at the time of their death.
File within two years of your spouse’s death.
You cannot have remarried after your spouse’s death.
The marriage must have been real, meaning it was entered in good faith, is legitimate, and not solely for immigration purposes.

2. Gather Required Documents

Proof of U.S. citizenship of your deceased spouse (e.g., birth certificate, naturalization certificate, or U.S. passport).
Marriage certificate to prove the legal marriage.
Death certificate of the U.S. citizen spouse.
Evidence of a bona fide (real) marriage, such as joint bank accounts, shared property, and family photos.
If applicable, include documentation for unmarried children under 21 who will be included as derivative beneficiaries.

3. Complete Form I-360

Download Form I-360 from the USCIS website or request a paper copy.
Fill out all sections accurately, providing information about yourself, your deceased spouse, and your marriage.
Make sure to double-check for any mistakes or incomplete sections.

4. Submit Form I-360 and Supporting Documents

Mail the completed Form I-360, along with all required documentation, to the appropriate USCIS office. It’s USCIS processing fee is $515 and can be paid by personal check or by credit card. The mailing address you will use depends on your location (listed in the form instructions.)

5. Wait for a USCIS Decision

Current processing times for Form I-360 can vary depending on different factors. Expect to receive an answer within 12 to 16 months. If your application has errors, omissions, or if USCIS requires more information, it could take significantly longer.

USCIS will review your petition and may send a Request for Evidence (RFE) if they need additional documentation.
The processing time for Form I-360 varies, but you can check the status of your case online using the receipt number you’ll receive after filing.

6. Filing for Adjustment of Status or Consular Processing

If you are in the U.S.: Once Form I-360 is approved, you can file Form I-485 (Application to Register Permanent Residence or Adjust Status) to apply for your green card.
If you are outside the U.S.: Once Form I-360 is approved, your case will be sent to the NVC (National Visa Center) for additional processing, allowing you to apply for an immigrant visa at a U.S. embassy or consulate in your country.

7. Attend the Green Card Interview

Whether through adjustment of status or with consular processing, you may need to attend an interview to prove your eligibility for a lawful permanent residence (green card).
Be prepared to present additional evidence (if required) of your bona fide marriage and answer more questions about your relationship.

8. Receive Your Green Card

Once you complete all the above steps and your application for petition is accepted and approved, you will obtain a green card, granting you lawful permanent residency in the U.S.

Filing Form I-360 as a widow or widower allows you to continue your immigration journey independently and obtain permanent residency despite the loss of your spouse.

Common Roadblocks to I-360 Approval

While the I-360 may seem like the key to unlocking your lawful permanent residency status in the U.S., some may face obstacles and hurdles to having their applications approved. Being aware of the troubles you could face when filing can help you develop a winning strategy before filing. Here’s a look at some of the more common roadblocks to having Form I-360 approved.

Being Unable to Prove a Bona Fide Marriage

Not having sufficient evidence of a genuine relationship. Without proof of things like joint financial records, shared leases, or affidavits from friends and family, your marriage could be questioned.
You didn’t live together in a marital residence and kept separate residences without a valid explanation.
Any kind of discrepancies in your timeline of the relationship will put your marriage under the microscope of investigation. Inconsistent dates regarding when the relationship began or when significant life events occurred are signs of an illegitimate marriage.

Missing the Two-Year Filing Deadline

To be eligible for widow(er) benefits, you must file Form I-360 within two years of your spouse’s death. If you miss this deadline, the result will most likely be an automatic denial of your petition. It’s very important to take the steps to protect your immigration status soon after your spouse’s death. If you miss the deadline, there are very few exceptions, and you may need to explore other immigration options with the help of an attorney.

Remarrying After Your Spouse’s Death

If you remarry after your U.S. citizen spouse’s death, you are no longer eligible to file Form I-360 as a widow(er). Quickly getting married disqualifies you from self-petitioning. This holds true even if your original marriage was genuine and you filed within the two-year window. This is a strict eligibility requirement, and there are no exceptions.

Insufficient or Incomplete Supporting Documentation

Form I-360 requires extensive documentation to prove both the legitimacy of your marriage and your eligibility as a widow or widower. Failing to provide the required evidence or submitting incomplete paperwork can lead to delays or the denial of your petition. A few of the most common mistakes include:

Missing documents: Forgetting to include essential documents like your marriage certificate, your spouse’s death certificate, or proof of your spouse’s U.S. citizenship will cause significant delays.
Inconsistent information: Mismatches between the documents provided and the information you provided on your I-360 form will almost always trigger a Request for Evidence (RFE) or even a denial.

Request for Evidence (RFE) Delays

If there are any inconsistencies in your application, USCIS may issue a Request for Evidence (RFE) asking for additional documentation or for some type of further clarification. RFEs can cause significant delays in the approval process and may indicate that USCIS has concerns about the validity of your petition.

Not responding on time: Failing to respond promptly to the RFE by the requested deadline could lead to denial.
Inadequate response: Failing to provide sufficient evidence and documentation or not addressing all of USCIS’s questions could result in your petition being rejected.

Divorce Before the Spouse’s Death

If you were divorced from your U.S. citizen spouse before they passed away, you are not eligible to file Form I-360 as a widow or widower. Only individuals who were legally married to the U.S. citizen at the time of their death can file. A prior divorce, even if you later reconciled, disqualifies you from this type of petition.

Prior Immigration Violations or Criminal History

Your personal immigration or criminal history can be an obstacle to I-360 approval. Some examples include:

Unauthorized stay or illegal entry: If you gained entry to the United States without inspection or overstayed a visa, this could affect your ability to adjust your status after Form I-360 approval, even if your petition is approved.
Criminal history: If you have a criminal record, it may affect your eligibility for permanent residency after your I-360 petition is approved.

How to Overcome the Roadblocks to I-360 Approval

Being knowledgeable about the process and arming yourself with all of the required documents are a big part of avoiding any issues with your petition being granted. A few of the best steps you can take to avoid any issues or delays are to:

Consult with an experienced immigration attorney: If you encounter any of these issues, it’s essential to seek professional legal help to navigate complex situations.
Gather thorough documentation: Be meticulous in collecting and organizing all required evidence to avoid unnecessary delays.
Respond promptly to USCIS requests: Pay careful attention to deadlines for submitting additional evidence or responses to RFEs.

What to Do If Your I-360 Petition is Denied

Before attempting to appeal, you have two options. You can either file a Motion to Reopen or a Motion to Reconsider. Both of them are requests for USCIS to look over your case a second time, but with slight differences:

Motion to Reopen: If new evidence has been found that wasn’t available during the original decision, you should file a Motion to Reopen. USCIS will reassess your case using this additional information.
Motion to Reconsider: This can be filed if you believe the denial was due to an error in applying immigration law or its policies. In this instance, you are requesting USCIS to review the decision based on the existing evidence.

The deadline for filing is 30 days after receiving your denial.

Appeal to the Administrative Appeals Office

If USCIS denies your petition, you have the legal right to appeal the decision to the Administrative Appeals Office (AAO). The AAO reviews appeals for many types of immigration petitions, including certain I-360 categories.

How to Appeal: If eligible, you will need to file Form I-290B (Notice of Appeal or Motion) with USCIS. The form must be filed within 30 days of receiving the denial (or 33 days if you received the denial notice by mail).
Fees: There is typically a filing fee for Form I-290B, though certain categories (such as VAWA self-petitioners) may qualify for a fee waiver.

Appeal Process

Once you file your appeal, the AAO will review your case to determine whether the original decision was correct. The review process can take several months, depending on the complexity of the case. The AAO may:

Uphold the denial, meaning the decision remains unchanged.
Overturn the denial, approving your I-360 petition.
Return the case to USCIS for further action or consideration.

Form I-360 Widow or Widower Petition Explained

In the unfortunate event that your U.S. citizen spouse dies before they’ve had the chance to file a petition so you can receive your green card, Form I-360 comes to the rescue. Fortunately, you’re not left out of the process and with the proper information, you can petition for residency.

It’s of utmost importance to file correctly and within the time frame allowed. Failure to do so can result in significant delays or even having your petition rejected. If you require assistance with filing your petition, working with an experienced immigration lawyer can help to ease your worries and simply the process.