Filing as a widow

Dear: Mrs Walker- Huntington,

I am a Jamaican who got married to an American in 1997 and the request for residency was filed for me and my daughter. We received a call for interview in 2002, prior to which time I received a work permit which also expired in 2002, so the transition process was in effect.

My daughter and I left the US in 2002 and so technically abandoned our residency procedure. We subsequently received 10-year visitor's visa to the US from the embassy in Jamaica.

My husband died in 2003. In October 2009, an immigration law was passed regarding filing for widows(er).

Please, advise me if I would be eligible for filing 1-130 or any other permanent-residency application based on my situation.

- M.B.

Dear MB:

On October 28, 2009, FY2010DHS Appropriations Act was enacted into law in the US, allowing eligible widows and widowers of citizens to file for permanent residency, notwithstanding how long the couple was married before the death of one spouse. If a spouse qualifies for permanent residency under this provision of the law, their minor, unmarried children automatically qualifies for the same status. The law also applies equally to spouses of US citizens who live in the States as well as those who live abroad.

To qualify, the intending immigrant must be admissible to the US, which means that if you would have been denied an immigrant visa if your spouse was alive, you might still be deemed inadmissible after your spouse's death.

To self-petition as the widow(er) of a citizen you must prove to United States Citizenship and Immigration Services (USCIS) that you were the legal spouse of the deceased US Citizen; that your marriage was bona fide and viable; that you, the surviving spouse, have not remarried; and that you are admissible to the States.

You must be able to produce an original or certified copy of a marriage licence. Most importantly, you have to demonstrate to USCIS that your marriage was a real marriage - i.e. one that was not only entered into for immigration purposes. Additionally, you must show that the marriage was active.

In some cases, the US-citizen spouse lived in the States and the immigrant lived abroad. While that is a more difficult case, it is not impossible. There are several spouses who live in two different countries. What is important is how the couple lived. Did they live in such a fashion as to outwardly demonstrate that they were a married couple? Was one spouse supporting the other and can that be proven? Was there constant communication between them and how often did they see each other?

It is not clear from your letter, but it appears that you and your husband may have in fact separated in 2002 when you abandoned the petition he filed for you and your daughter and returned to Jamaica.

It also appears that you may have overstayed in the US (1997- 2002). If that is the case, then you would face a mandatory 10-year bar to return to the US. However, if you in fact still had a viable marriage up until the death of your husband, and if you do not face inadmissible issues, this new law gives you until October 28, 2011, to self-petition as the widow of a US citizen.

For other spouses of deceased US citizens whose spouses died after October 28, 2009, they must self-petition for residency within two years of the death of their spouse. There are several spouses of US citizens who qualify for social security death benefits and are unable to receive these benefits because they must spend at least 31 days of each year in the States. It is therefore, worthwhile for all spouses of deceased US citizens to explore whether they might be eligible to self-petition for a green card.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practices in Florida in the areas of immigration, family, corporate and personal injury law. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walkerhuntington.com or editor@gleanerjm.com.