October 28: Critical deadline for widows of US citizens

Two days before the interview for his green card, James’ wife, Diana, suffered a heart attack and died. As his wife was the petitioner, the application for his green card or permanent residency visa was denied. James, married for only eighteen months at the time of Diana’s death, returned to Manila in 2007.

A similar case happened to Thelma. Ten years ago, a petition on her behalf filed by her US citizen husband was approved. A week before Thelma’s scheduled interview at the US Embassy in Manila, she received the news that her husband died in a tragic accident at his workplace. Thelma’s application for a green card was also denied. Thelma had been married less than two years at the time of her husband’s death.

On October 29, 2009, widow(er)s of US citizens were given a compassionate and humanitarian opportunity to apply for green cards despite the death of their US citizen spouses.

What steps do they need to take to apply for an immigrant visa? In the case of Thelma, the death of the husband took place almost ten years ago, can she still apply for the immigrant visa?

Two-year rule

Those who have been married for at least two years to a US citizen and those who file immigrant petitions within two years from the death of the US citizen spouse may still receive immigration benefit. This is on the condition that the widow has not remarried.

Before 2009, there were widows who were allowed to self-petition on the basis of the two-year rule. This required a marriage of at least two years and filing of a self-petition also within two years from death of petitioner.

While there were a significant number of widows who were able to get their green cards through self-petition within the two-year rule, there were  many who lost this opportunity because their US citizen spouses died less than 2 years into the marriage. No consideration was given, at that time, even if the two-year wedding anniversary was just a few days from the death of the petitioner.

Amendment to the rule

To ameliorate the harsh effect of the two-year rule for widows who had valid marriages prior to the death of their US citizen spouses, the two-year rule was scrapped.

This means that the number of years as a married couple is no longer relevant. What is important to prove is that the marriage was entered into in good faith and that prior to the death of the US citizen, the couple lived together as husband and wife.

Transition Period

While the two-year marriage rule was eliminated, the law still requires that the self-petition by the widow must be filed within two years.

For those whose marriages were less than two years bugt who failed to file within two years from death of their spouses, the amended legislation provides for a “transition period”. They are afforded only until October 28, 2011 to file their self-petitions with the U.S. Citizenship and Immigration Services.

One of the requirements that still remains in effect is the fact that the widow of the US citizen must not have remarried.

Thelma had remarried will not be able to get her green card as the widow of a US citizen.

In the case of James, even if the death occurred in 2007, he is still given until October 28, 2011 to file a Self-Petition with the  US Citizenship and Immigration Service.

So to all widow(er)s who were unable to self-petition because of the two year marriage rule, take note and do not delay.

(Tancinco may be reached at [email protected] or at 887 7177 or 721 1963)