The USCIS issued a memo recently that gives nationwide application to a court decision regarding widow(er) benefits.  Under current law, when a U.S. citizen spouse dies, the surviving spouse can self-petition for permanent resident status.  See INA § INA 201(b)(2)(A)(i). The limitations are that the widow(er) must file the Form I-360 petition within two years of the U.S. citizen spouse’s death and the widow(er) must not have re-married. A separate statutory provision, INA § 204(l), provides another form of relief for all other beneficiaries in the family-based categories when the petitioner dies. Section 204(l) requires that the beneficiary be residing in the United States at the time the petitioner died and that he or she has obtained a substitute sponsor.  If these and other requirements are met, the beneficiary can request that the petition, which was revoked upon the petitioner’s death, be reinstated. The question before the court was whether the widows and widowers of deceased U.S. citizen spouses could also use section 204(l) relief in cases where they have re-married within two years of the spouse’s death.

The Eleventh Circuit Court of Appeals held that widow(er)s were not precluded from seeking relief under 204(l) and that the bar to re-marrying would not apply to those seeking that form of relief. Williams v. DHS Secretary, 741 F.3d 1228 (11th Cir. 2014). The USCIS in its recent memo has chosen to apply the court decision nationwide. The agency clarified the various requirements of section 204(l) relief as it pertains to widow(er)s, which include the following: (1) the couple has entered into a bona fide marriage; (2) the U.S. citizen spouse has filed an I-130 petition on behalf of the spouse; (3) the U.S. citizen spouse died while the petition was pending or after it was approved; (4) the widow(er) was residing in the United States at the time the spouse died; (5) the widow(er) has secured the assistance of a U.S. citizen or LPR family member who has agreed to act as a substitute sponsor.; and (6) the widow(er) has formally requested reinstatement of the petition.  The USCIS would still have discretion to approve the Form I-130 (or to reinstate a prior approval) under INA 204(l), notwithstanding the widow(er)’s remarriage.

One of the benefits of widow(er) benefits is that the derivative children (unmarried and under 21) may also immigrate as immediate relatives under the original I-130 petition filed on behalf of the surviving spouse or under the I-360 self-petition. This benefit would not be possible if the widow(er) chooses to seek benefits under 204(l).