USCIS Guidance on Surviving Spouses and Children of U.S. Citizens
Posted Jul 03, 2009
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The U.S. Department of Homeland Security (DHS) recently granted interim relief for widows of U.S. citizens and their minor children. On June 9, 2009, DHS Secretary Janet Napolitano granted deferred action for widow/ers of U.S. citizens and their unmarried children under 21 years old. This should allow time to address the problems faced by surviving family members through changes in the law. The problem addressed by this relief involves foreign national widow/ers of U.S. citizens who reside in the United States, and their minor children, when the marriage has been less than two years in duration at the time of the death of the U.S. citizen spouse.
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Two-Year Rule for Widows/ers Creates Problems
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There can be serious immigration problems faced by surviving foreign national spouses of U.S. citizens, if the U.S. citizen dies before the marriage has lasted at least two years. These problems do not exist for foreign national spouses who have been granted permanent residence. The issue surrounds options available to the widow/er of a U.S. citizen, if his/her marriage was not marked by at least a second anniversary at the time of the U.S. citizen's death.
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If the marriage has endured for at least two years, there is an option for the widow/er to self-petition for immigration relief. Additionally, there is an option if the marriage was less than two years in duration, but a Petition for Alien Relative (I-130) was approved before the death. The general rule is that an I-130 petition is automatically revoked if the petitioning relative dies. There is an exception that can be granted on humanitarian grounds if the I-130 petition was approved before the death.
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Absent one of these two choices, however, widow/ers often find themselves facing not only the loss of a loved one, but an absence of immigration options and the risk of removal or deportation from the United States. This has resulted in various legal challenges and proposed legislation.
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Cases Put on Hold Awaiting Legislative Change
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In response to the problems facing widows/ers in these circumstances, Secretary Napolitano directed the USCIS to suspend adjudication of visa petitions and adjustment applications filed for widow/ers when the only reason for reassessing eligibility is the death of a U.S. citizen spouse. The DHS Secretary has also directed Immigration and Customs Enforcement (ICE) to defer initiating or continuing removal proceedings, or issuing final orders of removal against qualified widow/ers and their eligible children.
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"Smart immigration policy," Napolitano said, "balances strong enforcement practices with common-sense, practical solutions to complicated issues." This interim relief strikes that balance by giving widow/ers and their eligible children an opportunity to stay in the United States while their legal statuses are resolved.
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USCIS Guidance on How Eligible Persons May Apply for Relief
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The USCIS issued guidance on June 15, 2009 on how to apply for this interim relief. As stated in the guidance, this is only applicable to the surviving spouse of a U.S. citizen who died before the second anniversary of the marriage. Additionally, such a spouse may not have remarried and must not have been legally separated from the U.S. citizen spouse. S/He must also reside in the United States. The relief also applies to such a surviving spouse’s qualifying children.
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If I-130 Approved before Death
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If the I-130 petition was filed and approved before the U.S. citizen spouse’s death, then the humanitarian exception may be requested. The guidance indicates that adjudicators should presume that humanitarian reasons support a grant of this request. Individuals in this situation need to consult with their immigration attorneys. There is a difference in the interpretation of immigration law on this matter by Federal Courts with jurisdiction over different parts of the United States. Thus, there are geographic variations, and potentially more favorable options, as some locations do not regard eligibility for the I-130 benefit as ending with the death of the petitioner.
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I-130 Pending at Time of Death
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If the I-130 was filed, but not yet approved, at the time of the petitioner’s death; the position of the USCIS is that the case should be held in abeyance. The USCIS needs to receive a copy of the petitioner’s death certificate. If the foreign national filed the Application for Adjustment of Status (I-485), this will also be held. If the I-485 was not filed, the foreign national can ask for deferred action, as explained below. However, if the couple was married for longer than two years at the time of the U.S. citizen's death, the I-130/I-485 will be denied and the surviving spouse will be instructed to file the I-360 self petition as a widow/er.  
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I-130 Denied or Not Filed
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If the I-130 petition was denied due to the death of the petitioner prior to the issuance of the guidance, the foreign national may ask for deferred action. The same is true in situations where the I-130 was not yet filed, as long as the couple was legally married (and not legally separated) at the time of the death of the U.S. citizen spouse.
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Requesting Deferred Action / Employment Authorization
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In order to request deferred action, qualified beneficiaries should file the Petition for Amerasian Widow/er or Special Immigrant (Form I-360) (PDF 325KB). The USCIS guidance directs that these petitions must be filed with the Vermont Service Center (VSC). The guidance explains the proper box to check on the form and correct notation. The form must be accompanied by appropriate documentation. The validity period of the deferred action is two years.
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This memorandum also provides guidance on requesting work authorization. This can be requested after the grant of deferred action. Unlike most other forms of employment authorization, however, it requires proof of economic necessity.
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Conclusion
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We at the Murthy Law Firm believe that these USCIS changes in policy and procedure are a positive step for this group that is often disenfranchised. The policy change is a result of the recognition by the USCIS of a significant problem in the law that has been brought to light by litigation and other efforts on the part of immigration advocates. It is important, as noted in the guidance, to understand that deferred action is not an immigration status. It is just a temporary hold on certain cases, hopefully to allow for change. Individuals with safer immigration options, through avenues other than marriage to a U.S. citizen, should continue to pursue those options. Individuals who need the benefit of the revised USCIS guidance should monitor changes in the law carefully, and take the necessary action based upon those changes.