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September 7, 2009: Widow Petition, Adjustment of Status, and Consular Processing issues

Widow Petition, Adjustment of Status, and Consular Processing issues

I entered the United States illegally. Shortly after that I met my Husband. We got married, he petitioned for me and my kids. We were married for 4 years and before we went to the consulate for my permanent resident visa, he died. My mother in law wants to petition for me, but a friend told me that I can file as a widow but anyhow I have to go to the consulate. Would it be easier if my mother in law replaces my husband, instead of waiting for the widow petition? I never had children with him. My mother in law is my only relative. What should I do?
— Anonymous

It appears that you have many immigration issues. However, the main question is whether you are eligible to file a widow petition in the United States based on marriage to a United States citizen. Generally, to be eligible to file an I-360 as a widow, you will need to prove that you were married to (and not legally separated from) your husband for at least two years prior to his death, that his death occurred less than two years from the date the I-360 is filed, and that you have not remarried.

Filing an I-360 is the proper route if you meet the above criteria and if an I-130 petition had not already been approved on your behalf. If an I-130 was approved, the approval is automatically revoked upon the death and you will have to apply for reinstatement of the petition by convincing the United States Citizenship and Immigration Service (USCIS) that it should be reinstatement based on humanitarian factors. If successful, your mother-in-law could assist you by being your sponsor and providing your with an affidavit of support.

However, it appears that your mother-in-law will not be able to file a separate petition for you because immigration law does not recognize as a family-based immigration category such a familial relationship. Another issue that you may run into is that you entered the country “illegally.” By stating “illegally,” I am assuming that you mean without being inspected and admitted at a port of entry. If that is the case, then you may not be eligible to adjust your status in the United States. Rather, you may have to travel abroad to consular process and submit a waiver of your inadmissibility to the United States to the consulate since you may be barred from reentering the USA for ten years after departure.

Such a waiver would require you to show extreme hardship to qualifying relatives, and it appears that your mother-in-law does not qualify as a qualifying relative. If in fact you did enter with a visa after being inspected and admitted, but had overstayed your authorized period of stay, then you may be eligible to adjust your status in the United States. As you can see, you have many immigration questions that need to be addressed, which must be done in a lot more detail than what is being provided above. The above explanation is not to be construed as specific legal advice. It would be wise to consult with an experienced immigration attorney to review your immigration history with you and to properly advise you on how to proceed.

Michael Shane and Evan Shane, Immigration Attorneys

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