A surviving derivative spouse and children of an Afghan who qualifies under the Special Immigrant Visa program may be eligible to continue with the SIV program after the principal applicant has died. Practitioners should be aware of the possibility of continuing with the SIV process in these circumstances.

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.