My USC Spouse Died in War. Now What?

Question: I was married to a marine for only a short period. He was going to petition me, but to my dismay, he got killed in Iraq. What can I do now?
Answer: I am sorry to hear of your loss. However, under immigration laws, it is still possible to immigrate through a self petition. This situation permits self-petition by the spouse, parent or child of a USC who served honorably in the Armed Forces and died as a result of injury or disease incurred in or aggravated by combat as long as the petition is filed within 2 years of the USC’s death. Spouse may not have been legally separated at the time of the spouse’s death and may not remarry during the petitioning process. A child may apply even if he turns 21 or marries after the USC’s death. A parent of the deceased USC may file an immediate petition even if the deceased USC child was under 21 years of age. Public charge is waived as a ground of inadmissibility. The petition is made on an I-360 and an I-485 may be filed concurrently.
Question: So, even my child who was born in my home country can be petitioned under this provision?
Answer: Yes. The normal types of petitions and limitations do not apply here. Thus, if you have any family member of a deceased armed services personal, you should get a consultation as to whether they may apply for this special self-petition. Remember, there is only a 2 year timeframe in which to do it before it is no longer available.
Question: I have a friend who is in my unfortunate situation as well. We used to talk while our spouses were at work. Unfortunately, her husband was only a Lawful Permanent Resident, not a U.S. Citizen. Is there anything she can do?
Answer: A spouse, parent, or child of an LPR who honorably served, died as a result of injury or disease incurred in or aggravated by combat, and who posthumously became a USC, can self-petition as an immediate relative if filed within 2 years of LPR’s death. The spouse, parent, or child is also eligible for deferred action, advance parole and work authorization. Public charge is waived as a ground of inadmissibility. Thus, tell your friend to first file what is necessary to get her deceased husband posthumous citizenship. Afterwards, she can file for the exact same thing you are filing for to obtain residency.
Question: What if already had a petition filed by her lawful permanent resident husband and then her husband was killed in action?
Answer: A spouse, parent, or child of a USC who served honorably in active duty status, who died as a result of injury or disease incurred in or aggravated by combat, and who was granted posthumous citizenship may adjust his or her status to LPR if the adjustment was filed prior to the USC’s death.
Question: What qualifies exactly for the armed services personal to be killed in action?
Answer: USCIS has defined “died as a result of injury or disease incurred in or aggravated by combat” to mean: (1) the death is attributable to an injury or disease for which the member was awarded the Purple Heart; or (2) the death resulted from an injury or disease that was incurred or aggravated: (a) as a direct result of armed conflict; (b) while engaged in hazardous service; (c) in the performance of duty under conditions simulating war; or (d) through an instrumentality of war. Armed conflict includes instances when the service member was a prisoner of war or while escaping or attempting to escape. Hazardous service includes aerial flight, parachute duty, demolition duty, experimental stress duty, and diving duty. Conditions simulating war includes military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction course, grenade and live fire weapons practice, bayonet training, hand-to-hand combat training, repelling, and negotiation of combat confidence and obstacle courses. Instrumentality of war includes a vehicle, vessel, or device designated primarily for military service and intended for use in military service but may also include instrumentalities not designated primarily for military service if its use subjects the service member to hazard or risk peculiar to military service. It may therefore include wounds caused by a military weapon, accidents involving a military combat vehicle, or injury or sickness caused by fumes, gases, or explosion of military ordinance, vehicles or material.
Thus, if you are in the unfortunate situation of having a family member who falls under the above situation, be sure to get a consultation as to whether they might be able to self-petition under these provisions of law.