10/7/2009

1. USCIS Guidance on Surviving Spouses and Children 

The U.S. Department of Homeland Security (DHS) 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 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.

2. Two-Year Rule for Widows Creates Problems

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 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.

If the marriage has endured for at least two years, there is an option for the widow 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.

Absent one of these two choices, however, widow 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.

3. Cases Put on Hold Awaiting Legislative Change

In response to the problems facing widows in these circumstances, Secretary Napolitano directed the USCIS to suspend adjudication of visa petitions and adjustment applications filed for widow 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.

"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 and their eligible children an opportunity to stay in the United States while their legal statuses are resolved.