QUESTION: Is it possible for someone to apply for the green card if she was married to a United States citizen or Legal Permanent Resident if the spouse has died?
ANSWER: Possibly. This can be done through Form I-360. The widow/widower must have been married for at least two years prior to the spouse’s death. Further, they must show that the application is being filed within two years of the spouse’s death and that they were living together.
QUESTION: What if the United States citizen spouse dies before two years of marriage?
ANSWER: The answer to this question depends on where the person resides. In the Ninth Circuit (California follows the laws of Ninth Circuit), if the United States citizen spouse dies after filing the spousal immediate relative (Form I-130) and after the person has filed for the green card (Form I-485), but before there is a final decision on the spousal immediate relative, the spousal immediate relative can still be approved. Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006). It must be shown that the marriage was a bona fide marriage, one not entered into for gaining immigration benefits. But, if the green card application was not filed before the spouse died, then the spousal immediate relative will be denied.
QUESTION: Is it possible for someone to apply for the green card if she was married to a United States citizen or Legal Permanent Resident if the spouse is still alive, but has been abusive and is refusing to help with immigration paperwork?
ANSWER: Yes. This can be done through Form I-360. You will have to send in documentations and affidavits to prove that you were abused by the United States citizen/Legal Permanent Resident spouse.
QUESTION: Does the abuse have to be physical?
ANSWER: No. The abuse can be physical, mental and/or emotional. You must be able to prove this. A letter from a psychologist, psychiatrist, or therapist would be extremely helpful.
QUESTION: Can the widow or abused individual marry someone else while the I-360 is pending?
ANSWER: No, the individual cannot marry until the Legal Permanent Residence status has been granted.
For more information, you may contact us for a consultation.
MONICA GANJOO is an immigration attorney with offices in San Francisco and San Jose. Ganjoo Law Office currently offers $25 consultations in San Francisco and San Jose. To obtain a consultation in San Francisco, call (415) 495-3710. To obtain a consultation in San Jose, call (408) 975-0500.
SAN FRANCISCO:
870 Market Street
Suite 340
San Francisco, CA 94102
(415) 495-3710
SAN JOSE:
111 West St. John Street,
Suite 513
San Jose, CA 95113
(408) 975-0500
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