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Analysis: New Law Eliminates Widow Penalty and Reduces Need for Humanitarian Reinstatement

New Law Eliminates Widow Penalty and Reduces Need for Humanitarian Reinstatement

By Charles Wheeler

Widow(er)s.  On October 28, 2009, President Obama signed into law the FY10 DHS Appropriations Act (P.L. 111-83), which included a provision eliminating the requirement that the surviving spouse of a U.S. citizen be married for two years prior to the death in order to self-petition for LPR status.  As reported in earlier issues of the newsletter, federal litigation throughout the country had carved out regions where the surviving spouses could proceed with an I-130 petition filed before the U.S. citizen died, despite the parties not having been married for two years.  And the USCIS had recently implemented a new program granting deferred action status to those similarly affected in the other regions of the country.  This new legislation should remedy this disparate treatment and current conflict in the federal circuits and obviate the need for deferred action relief.

The statutory provision relating to self-petitioning widow(er)s now reads: “In the case of an alien (and each child of the alien) who was the spouse of a citizen of the United States and was not legally separated from the citizen at the time of the citizen’s death, the alien shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen’s death but only if the spouse files a petition under section 204(a)(1)(A)(ii) within two years after such date and only until the spouse remarries.”  Therefore, the surviving spouse, and any child of that spouse, must still file an I-360 petition within two years of the citizen spouse’s death and remain unmarried.  But it now no longer matters how long the couple were married before the citizen spouse died.

Example.  John, a U.S. citizen, was married only eight months to Maria, who is Nicaraguan, when he died in a traffic accident.  Maria may file a self-petition and obtain LPR status, assuming she is otherwise admissible.  She has two years from the date of his death to file the I-360.

If the citizen spouse had filed an I-130 on behalf of the alien spouse, that petition will automatically convert to an I-360 petition upon the petitioner’s death.  8 CFR § 204.2(i)(1)(iv).  This automatic conversion will occur to both I-130 petitions pending or approved at the time of the petitioner’s death.

The widow(er)’s children who are under 21 at the time the I-360 petition is filed can be included on that petition.  They should be able to preserve their “child” status after turning 21 based on the Child Status Protection Act, since these children are considered both derivatives of the widow(er) and immediate relatives.  If the petitioning parent had filed an I-130 on their behalf while the child was under 21, that child should also be able to proceed as an immediate relative on the automatically converted I-360, even if the child has subsequently turned 21.

Widow(er)s who are in the United States and qualify for adjustment of status should file an I-360 and I-485 along with supporting documentation (results of medical exam, proof of good faith marriage, proof of citizenship of the deceased spouse, proof of death).  They do not need to file an affidavit of support, but they will need to submit an I-864W.  Widow(er)s who are residing abroad should file the I-360 with the nearest consulate or USCIS overseas office; once that is approved, they will proceed with consular processing.

The legislation also addresses “transition” cases, or those where the surviving spouse did not qualify for to self-petition as a widow before the statutory change.  The new law applies retroactively to benefit alien spouses who were married for less than two years, provided they have not remarried.  They can now self-petition regardless of how long before October 28, 2009 the U.S. citizen spouse died.  However, they have two years from that date to file the I-360 petition.  This could potentially include a large group of persons, residing both here and abroad.

Example.  In the example above, John died in 2003 while the couple was living in Nicaragua.  Maria has not remarried.  She has until October 28, 2011 to file an I-360 petition that will start the process for her immigrating.

The statutory change does not remedy the problem for alien spouses who have been residing unlawfully in the United States and who do not qualify for adjustment of status under INA §§ 245(a) or (i).  Those widow(er)s may file a self-petition, but will need to consular process.  In doing so, they will trigger the unlawful presence bar and be inadmissible for three or ten years.  Unless they have an LPR or citizen parent, they will be unable to qualify for a waiver.  Hence, for practical purposes, the self-petition process for widow(er)s residing here is only an option for those who are lawfully present (or who have not accrued more than 180 day of unlawful presence) or eligible for adjustment of status.

Relief for Other Surviving Relatives.  If the deceased spouse were an LPR rather than a citizen, the surviving spouse would not qualify as an immediate relative and could not benefit from this “widow” self-petition provision.  The only relief available would have been if the LPR spouse had filed an I-130 petition and that petition had been approved prior to his or her death.  In those cases, assuming the beneficiary could obtain a substitute sponsor, he or she could move to reinstate the I-130 petition (which was automatically revoked on the petitioner’s death) based on humanitarian grounds.  8 CFR § 205.1(a)(3)(i)(C)(2).

But the same legislation signed into law on October 28, 2009 also addresses this group and many others on whose behalf a family-based petition was filed prior to the petitioner’s death.  The new legislation effectively removes the need to reinstate the petition based on humanitarian factors for most beneficiaries after the petitioner’s (or “qualifying relative’s”) death.  The statutory amendment does not provide relief to those beneficiaries currently residing outside the United States or who were residing abroad when the qualifying relative died.  Those beneficiaries will still need to reinstate the revoked petition, and they may only move to do so when the petitioner died after the underlying petition was approved.

This part of the statutory change addresses pending or approved petitions or adjustment applications filed by the following persons who subsequently die:

  • U.S. citizens on behalf of their unmarried children under 21 or their parents (immediate relatives)
  • U.S. citizens on behalf of their unmarried children over 21 and any derivatives (first preference)
  • LPRs on behalf of their spouses or unmarried children and any derivatives (second preference)
  • U.S. citizens on behalf of their married children and any derivatives (third preference)
  • U.S. citizens on behalf of their siblings and any derivatives (fourth preference)
  • Asylees and refugees on behalf of their derivative spouses and children, and
  • T or U nonimmigrant status holders on behalf of their derivatives.  The derivatives of a principal T and U status holder under 21 include his or her spouse, children, parents, and unmarried siblings under 18 years of age.  The derivatives of a principal T and U status holder over 21 include his or her spouse and children.

In summary, the principal or derivative beneficiaries (as well as the derivative asylee/refugee filing for adjustment) enumerated above would be entitled to have the petition or application continue to be adjudicated after the petitioner/qualifying relative has died, provided the beneficiary: (1) was residing in the United States at the time the petitioner/qualifying relative died, and (2) continues to reside here.  The only exception would be in cases where DHS determines that approval of the petition or application “would not be in the public interest.”  Presumably, the agency will provide clarification and examples of situations where it would be against the public interest not to proceed with adjudication of the petition.

Example: In the example above, John filed an I-130 petition for his brother, Mario.  Mario has lived illegally in El Paso with his spouse and three children since June 2000.  John died on October 30, 2009, but the fourth preference is now current for Mario’s I-130 that was filed in 1995 and approved a year later.  He and his family can file for adjustment of status under 245(i) because the I-130 petition was not affected by John’s death.  If, however, Mario and his family had been residing in Mexico, they could only seek to reinstate the I-130 based on humanitarian factors.

The statute also appears to provide relief in situations where the principal beneficiary – not the petitioner – has died.  In the past, when the principal beneficiary had died, either the derivatives were left without a basis for immigrating (e.g., derivative children in first preference cases or derivative spouses and children in third or fourth preference cases), or the petitioner had to file a new petition for the child (second preference cases).  The statute seems to allow these derivatives “of the qualifying relative” in all the family- and employment-based preference categories to proceed unaffected by the principal beneficiary’s death.

Example.  In the above example, assume that John filed a petition for his brother, Mario.  Mario died on October 30, 2009, before the visa became available or before he and his family could immigrate.  His spouse and two minor children, who were residing in El Paso at the time and continue to reside there, can continue with the immigration process once the priority date becomes current.  Had they been residing in Mexico, they would not qualify for this benefit, nor would they be able to move to reinstate the petition.

The statute also allows derivative asylees to adjust status after the principal asylee has died.  This avoids the derivative having to apply for nunc-pro-tunc asylee status before being eligible to adjust.  Derivative refugees do not face this hurdle if the principal refugee dies.

This statutory amendment does not appear to waive or excuse the grounds of inadmissibility or removeability; it simply allows the petition or application to be adjudicated notwithstanding the death of the petitioner, principal asylee/refugee, or principal T or U nonimmigrant.  However, an argument can be made that the phrase “and any related applications” that are adjudicated with the petition or application, despite the death of the qualifying relative, includes waiver applications that were pending or approved.  If that is true, then a beneficiary who is inadmissible would be able to file or proceed with a waiver application based on extreme hardship to the deceased qualifying relative.  We must await USCIS interpretation on this point, but we anticipate the agency resisting this interpretation.

Example.  In the case above where John filed a petition for Mario and Mario died before the visa became available, assume that Mario’s spouse and children will need to consular process.  Assuming the USCIS agrees that the I-601 is a “related application,” it will adjudicate it even though the qualifying relative has died.

The affidavit of support requirements are not waived for family-based cases involving a deceased petitioner, though the beneficiary may submit one from a substitute sponsor.  Substitute sponsors may include a close relative of the beneficiary (spouse, parent, mother-in-law, father-in-law, sibling, child at least 18 years of age, son, daughter, daughter-in-law, son-in-law, sister-in-law, brother-in-law, grandparent, or grandchild) or a legal guardian.  They must be either a U.S. citizen or LPR and be domiciled in the United States.  If they have insufficient income to satisfy the 125 percent of poverty requirement for their household size, they may obtain a joint sponsor who does meet it.  Beneficiaries residing in the United States whose petitioning family member has died will need to file a substitute affidavit of support as part of the adjustment of status or consular processing procedure.  Those who are residing abroad and will be moving to reinstate the petition will need to include a substitute affidavit of support with the motion.  Beneficiaries residing inside the United States who cannot secure a substitute sponsor will be unable to proceed with their application for adjustment of status or an immigrant visa; those residing outside the country will be unable to proceed with their motion to reinstate.

While the spouse of a deceased U.S. citizen cannot self-petition as a widow(er) if he or she has re-married, there is no specific prohibition against this spouse marrying and using the above relief as a surviving relative.  In other words, if he or she were residing in the United States on the date of the citizen spouse’s death and continued to reside here, and the citizen spouse had filed an I-130 petition, the surviving spouse might be able to proceed with a pending or approved I-130 petition even if he or she re-marries in the interim.  The same argument could be made for the spouse of a deceased LPR.  We need to await the USCIS’s position on this interpretation.

Finally, while the self-petitioning section of the new law contains specific language concerning its retroactive application to “transition cases,” there is no similar language in the section providing relief for other surviving relatives.  In the absence of such language it is presumed that this provision of INA § 204(l) applies only prospectively to cases where the petitioner/qualifying relative died on or after October 28, 2009.

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