Musings on Immigration

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New Options for Surviving Spouses of US Citizens


A marriage ending in the death of the US Citizen spouse before the two-year anniversary has, in the past, translated into “sayonara,” for the immigrant spouse and their minor children. However, Department of Homeland Security Secretary Janet Napolitano recently issued a memorandum granting deferred action to these widows and their qualifying children. The memo outlines different policies depending on where these surviving spouses are in the immigration process, demonstrating that Secretary Napolitano will be a valuable component of a reform package that will, hopefully, make great strides towards humanitarian relief in the US immigration system.

The new memo is sort of like 31 Flavors in that there’s something for everybody. For instance:

If the Form I-130 (Immediate Relative Petition) has been approved prior to the death of the US Citizen spouse, the surviving spouse may request reinstatement of the petition, which, by law, is automatically revoked. US Citizenship and Immigration Services can use its discretion to grant any reinstatement based upon the humanitarian considerations of the particular case. From there, the surviving spouse may proceed to the adjustment of status process (if they are in the US) or the consular processing stage (if they are outside of the US).

If the Form I-130 is pending at the time of the death of the US Citizen spouse, the petition will be held in abeyance, along with any concurrently filed Form I-485 (Application to Register for Permanent Residence). In the meantime, the surviving spouse is eligible for interim benefits, such as advance parole or an Employment Authorization Document.

If the Form I-130 was denied before the issuance of the new memo due to the death of the US Citizen spouse, the surviving spouse may now request deferred action by filing a Form I-360 (Petition for Amerasian, Widow or Special Immigrant).

If Form I-130 was not filed prior to the death of the US Citizen spouse, but the pair were legally married, the surviving spouse may also request deferred action through the filing of Form I-360.

The validity period for the deferred action is two years from the grant of Form I-360, making this just another ticking time bomb in the arsenal of immigration issues that must be reformed and resolved sooner rather than later.

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