New Rule Affords Interim Relief for Widows of U.S. Citizens

On June 9, 2009, a new rule was implemented by the Department of Homeland Security (DHS) to provide interim relief for surviving spouses of deceased U.S. citizens and their children.  Among other benefits, this new rule creates a new process by which the surviving spouse or child of a deceased U.S. citizen may apply for deferred action.

Prior to the implementation of this new rule, widows of U.S. citizens were placed in a precarious position if their spouse died before the second anniversary of their marriage.  If an I-130 petition filed by a U.S. citizen on behalf of a widow had not been approved, or if no petition was filed prior to the citizen's death, the spouse of the deceased U.S. citizen was left without any possible immigration relief.  Even where an I-130 petition had been approved, the approval would be revoked and the surviving spouse's only possible form of relief would be to apply for reinstatement of the revoked petition on humanitarian grounds. 

The new rule implemented by Secretary Janet Napolitano has addressed these issues in a number of ways.  Beneficiaries who have had an approved I-130 revoked based on the death of their U.S. citizen spouse should now have less difficulty having their petitions reinstated.  The new rule has indicated that discretion on humanitarian reinstatement of I-130 petitions should be exercised favorably, and that a presumption should be made that the humanitarian reasons given by the beneficiary support the request. 

Couples who submitted concurrently filed I-130/I-485 applications, only to have the U.S. citizen petitioner pass while the application was pending, will have their applications held in abeyance until further guidance is given by DHS.  While the application is being held in abeyance, the beneficiary is eligible to receive employment authorization and advance parole permitting travel outside of the U.S.

Where an I-130 is pending and not concurrently filed, has been rejected due to the death of a U.S. citizen petitioner, or has not yet been filed, a surviving spouse of a deceased U.S. citizen can seek deferred action.  To obtain deferred action, the surviving spouse must file Form I-360, a $375 filing fee, along with the required documents in support of the application.  The documentation that should be submitted includes a death certificate for the U.S. citizen spouse, a marriage certificate between the applicant and the U.S. citizen spouse, and divorce decrees for all prior marriages. 

If Form I-360 is approved, the applicant will receive a grant of deferred action for a period of two (2) years.  While under deferred action, the applicant will not be deemed unlawfully present in the U.S if currently here illegally or out of status.  Additionally, a recipient of deferred action is permitted to apply for employment authorization once their I-360 is approved.  In order to gain employment authorization under deferred action, an applicant must demonstrate economic necessity.

It is important to note that this new rule only applies to a specific group of people.  Surviving spouses of deceased U.S. citizens who are not currently in the U.S., or who are remarried, are not eligible for deferred action.  Additionally, a surviving spouse is not eligible for deferred action if the I-130 petition filed on behalf of the surviving spouse was denied for reasons outside of the death of the U.S. citizen spouse.

If you believe that you may be eligible for deferred action, or if you would like more information on the benefits available to widows of U.S. citizens, please visit immigration lawyer in oklahoma city.