Can I still get my green card if my sponsor died?

This page is general information, not legal advice. We are sorry for your loss. You do not have to sort this out today, but please do not let the 2 year deadline pass. A short call with a legal clinic can tell you which path is yours.

I was married to a US citizen

You can petition for yourself as a widow or widower and still be treated as an "immediate relative," which means no waiting line for a visa number. You qualify if (8 USC 1151(b)(2)(A)(i); 8 CFR 204.2(b)):

• You were married to the citizen when they died.
• You were not legally separated at the time of death.
• You file within 2 years of the death.
• You have not remarried. Your status as a widow(er) ends if you remarry before you become a permanent resident.
• Your spouse was a US citizen at the time of death. They did not need to be a citizen for the whole marriage.

There is no minimum length of marriage. Congress removed the old 2 year marriage rule in 2009 (8 USC 1151, statutory notes). Some older pages and the regulation text still mention 2 years.

Your unmarried children under 21 can be included on your petition (8 CFR 204.2(b)(4)).

What if my spouse had already filed for me?

If your citizen spouse filed an I-130 for you before they died, you may not need to start over. The rule says that petition is treated as a widow(er) I-360 if you met the requirements above on the date of death (8 CFR 204.2(i)(1)(iv)). This applies whether it was still pending or already approved.

Tell USCIS (or the National Visa Center, if your case is there) about the death and send a copy of the death certificate. Ask a lawyer to help with the letter.

What do I file as a widow or widower?

1. Form I-360, with a $515 fee (8 CFR 106.2(a)(17)).
2. Evidence (8 CFR 204.2(b)(2)):
   • Your spouse's proof of US citizenship (birth certificate, passport or naturalization certificate)
   • Your civil marriage certificate
   • Proof that any earlier marriages of both of you ended (divorce decree, death certificate)
   • Your spouse's civil death certificate
   • If a civil document is not available, other proof such as religious records, funeral records, obituaries or sworn statements from people who know the facts
   • Proof the marriage was real, such as a shared lease, joint bills, photos together, and statements from friends and family
3. Form I-485, if you are in the US and can apply here. You may file it with the I-360 or later.

No affidavit of support is needed for a widow(er) self petition (8 CFR 213a.2(a)(2)(ii)(A)).

Another relative was my sponsor

If your sponsor was a parent, adult son or daughter, brother or sister, or green card holder spouse, the death normally ends the petition. A law passed in 2009, section 204(l), changes that for many people. Your petition and your green card application can still be decided if you lived in the US when your relative died and you still live here (8 USC 1154(l)).

It covers you if, right before the death, you were:

• The beneficiary of a pending or approved family petition (immediate relative or family preference)
• A derivative (spouse or child) on a family or job based petition
• The beneficiary of a refugee or asylee relative petition (I-730)
• A family member admitted in T or U status
• The child of a VAWA self petitioner
• An asylee's spouse or child included in the asylum grant

USCIS can still say no if it decides approval is not in the public interest. You also need a substitute sponsor for the affidavit of support. It can be your spouse, parent, mother in law, father in law, sibling, adult child, son, daughter, son in law, daughter in law, sister in law, brother in law, grandparent, grandchild or legal guardian, who is a citizen or green card holder and meets the income rules (8 USC 1183a(f)(5)(B)).

USCIS's own rule: the relative must be alive at filing and decision, unless 204(l) applies (USCIS Policy Manual, Vol. 9, Part B, Ch. 4).

What is humanitarian reinstatement?

If your relative's petition was already approved when they died and 204(l) does not cover you (for example, you live abroad), you can ask USCIS to reinstate the approval for humanitarian reasons. It is up to USCIS, and you must have a qualified substitute sponsor willing to sign the affidavit of support (8 CFR 205.1(a)(3)(i)(C)(2)).

Write a request explaining why reinstatement is right: your age, health, family ties in the US, how long you have waited, and hardship. Include the death certificate, the approval notice and the substitute sponsor's details. A lawyer can tell you where to send it.

What mistakes should I avoid?

• Letting the 2 year widow(er) deadline pass. Mark it on a calendar now.
• Remarrying before your green card is approved. It ends widow(er) eligibility.
• Assuming the case died with your sponsor. Many cases can continue.
• Leaving the US with a pending green card application and no advance parole. It can abandon your application (8 CFR 245.2(a)(4)(ii)).
• Trusting a notario. Only lawyers and DOJ accredited representatives can give legal advice (EOIR).

Who can help?

Bay Area help (San Mateo and Santa Clara counties):

• CLSEPA: family immigration help for low income residents of San Mateo and Santa Clara counties. (650) 326-6440 (CLSEPA).
• Immigration Institute of the Bay Area (Redwood City): free first consultation, by appointment, (650) 587-1558 (IIBA).
• Catholic Charities San Francisco, San Mateo and Marin: family petitions and adjustment. (650) 285-6451 (Catholic Charities SF).
• Catholic Charities of Santa Clara County: $50 consultation, (408) 468-0100 (Catholic Charities SCC).

Anywhere: ImmigrationLawHelp.org lists nonprofit providers by ZIP code. For grief support, see Emotional support.

Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

Questions people ask

We were married only 8 months. Can I still apply? Yes. Any length of marriage counts, if you were not legally separated and you file within 2 years. Expect questions about whether the marriage was real, so gather proof.

We were living apart but never went to court. Does that count as legally separated? The rule says you must not have been "legally separated" when your spouse died, but it does not define the term (8 CFR 204.2(b)(1)(iii)). Don't guess. Ask a lawyer to look at your facts, and bring any court papers about a separation or divorce case.

My spouse died more than 2 years ago and never filed for me. The widow(er) path is closed. Other paths may exist, such as through a child who is a citizen and at least 21. Get a screening.

My mother was my sponsor and died while I waited in Mexico. 204(l) requires living in the US at the time of death. If her petition was approved, ask about humanitarian reinstatement with a substitute sponsor.

My spouse died after I got a 2 year green card. Do I lose it? No. You file to remove conditions and ask to waive the joint filing because your spouse died. See Removing conditions on a 2 year green card.

Is there a checklist I can print?

Yes. Use it for a widow or widower petition.