Immigration Corner | Is my petition still open after my husband’s death?

Dear Mrs Dahlia Walker-Huntington,

My husband died in 2011 while he was petitioning for me to move to Florida. However, after he died the process stopped. We have a child together who was just born when he died, but I was able to get a Consular Report of Birth Abroad for her upon proving that he was indeed a US citizen. She has been living in America with relatives since that time, but whenever I apply for a visitor’s visa to visit her, I am always denied. Can you tell me why this is so? Can you also tell me if there is a likelihood that the petition is still open and if it is, can I get a sponsor to continue the process?

Thanks in advance.

– W.D.

Dear W.D.,

As the spouse of an American citizen who dies before the immigrant is a permanent resident, you are entitled to file a Widow’s Petition – but you need to do this within two years of the death of your American citizen spouse. This applies if your deceased US spouse has not begun to petition for you for permanent residency. The other requirements are to prove the claimed relationship for immigration purposes, for you to have not been separated (does not mean living apart), and for you to have not remarried.

In your situation, if your deceased husband had already filed the initial Petition for Alien Relative before his death, that petition should be automatically converted to a Widow’s petition upon his passing. You need to immediately contact a US immigration attorney to determine whether your file is still open, and if you are able to benefit from the Widow’s Petition. If you can revive and/or convert your initial filing, you won’t need a substitute sponsor to complete the process.

Fortunately for your daughter, you were able to establish US citizenship for her from her father. Nine years is a long time to have an unfinished petition, but it is worth pursuing as it might still be viable.

Dahlia A. Walker-Huntington, Esq, is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com