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Death of a Spouse: Immigration Expansion of the Widow Exception

It is well-known that marriage to a U.S. citizen, if bona fide, provides a clear path to permanent residency in most cases. But what happens when a U.S citizen spouse dies prior to the approval of an application for permanent residency? Does the surviving spouse have options? Fortunately they do and under a new policy recently released from U.S. Citizenship and Immigration Services, these options have expanded providing a larger pool of applicants with an opportunity to legalize their status.

If an immigrant marries a U.S. citizen and has been married for more than two years and has not remarried and was not legally separated at the time the citizen (petitioner) passed away he or she may still save their residency. This Widow exception is accomplished by filing a self petition for permanent residency using Form I-360, as long as the petition is filed within 2 years of the passing. However, prior to this recent memo, if you had the same scenario as above but were married for LESS than two years the petition from the U.S. citizen spouse would be automatically revoked and the only way to save it was a process known as a request for Humanitarian Reinstatement.

This asking for mercy from the Immigration Service predictably falls on deaf ears. Though requiring two years of marriage to qualify seemed to be an arbitrary rule it has remained in effect long enough to negatively impact thousands who had the pain of losing a loved one compounded by the loss of the ability to live in their new home. Pain because they simply were not married long enough by this arbitrary rule.

Thankfully, that madness has now changed.

In a policy memorandum issued July 15, 2009 to immigration personnel the USCIS announced that the new guidelines would cover the following individuals: 1. A surviving spouse of a U.S. citizen who died before second wedding anniversary; 2. who has not remarried; 3. and was not legally separated; 4. While living in the U.S. at time of death. . Such surviving spouses are covered without restrictions on how long the U.S. citizen spouse has been deceased. Included in this group are intending immigrants who have been previously denied.

The memorandum speaks to some distinct and specific situations and how officers should handle them, if you fit into one of these scenarios seek an immigration professional for help.

  1. Your I-130 is approved prior to the Death of Spouse (Petitioner - In this case the I-130 is automatically revoked and the beneficiary must ask for humanitarian consideration as previously mentioned. What is different is the policy memorandum specifically states that, if a beneficiary covered by this guidance requests humanitarian reinstatement, adjudicators should PRESUME that humanitarian reasons support a grant of the request." Meaning the guideline is absent adverse information the case should be approved.
  2. I-130 Pending at the Time of Death of Spouse (Petitioner)- If this is your situation then as the surviving spouse you should send a copy of the U.S. citizen's death certificate to the Immigration Service and the case will then be held in abeyance which means that no further action will be taken and the immigrant is not in danger of being removed from the United States.

When the Immigration Service grants A Deferred Action Request it does not confer or grant permanent residency but it stop any movement towards removal from the United States and provides work authorization and permission to travel to the surviving spouse or the same benefits of permanent residency.

The memorandum went on to address those surviving spouses who have been denied previously to this new policy and those who married a U.S. citizen and never had the opportunity to file because of the untimely passing. They are covered and have benefits available to them as well.

If you married a U.S. citizen and he or she passed prior to your grant of permanent residency go see a qualified and reputable immigration attorney because in this time of pain there is new hope.

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