Published: January 13, 2011

On October 28, 2009, President Obama signed into law important immigration provisions to address the unjust consequences of slow Citizenship and Immigration Services processing, particularly relating to widows and widowers of U.S. citizens. The law also includes ameliorative provisions relating to other types of family relationships and petitions; the death of a petitioning US family member or principal beneficiary will no longer necessarily deal a fatal blow to a pending case. With regard to this latter category of petitioners, however, significant questions have now been answered.

Widows and Widowers of U.S. Citizens Benefit from New Liberal Provisions

Consistent with recent Department of Homeland Security policy, the new legislation effectively eliminates what was known as the “Widow Penalty.” Under previous law, foreign nationals who were the widows or widowers of U.S. citizens only qualified for an initial grant of U.S. residence if they were married for at least two years prior to their spouse’s death. Now, a foreign national spouse is eligible to seek U.S. permanent residence (by completing Form I-360), no matter how long they were married at the time of the U.S. citizen’s death, and regardless of whether their spouse ever initiated the U.S. immigration process or obtained approval of an I-130 petition. The law applies retroactively as well as to surviving spouses who were overseas at the time of their U.S. citizen spouse’s death. Thus spouses of deceased U.S. citizens who were ineligible due to the short term of the marriage can now benefit from U.S. immigration benefits, including foreign spouses who have never set foot into the U.S. — no matter how long ago they were widowed. Also, upon the death of a U.S. citizen, their surviving widows/widowers who were previously the subject of an I-130 petition now have their cases automatically converted/considered as I-360 widow/widower petition – and again, regardless of how long the couple was married at time of their U.S. citizen spouse’s death.

NOTE: 2 year Deadline!!!

Foreign nationals whose U.S. citizen spouses died before the enactment of the new law must apply for U.S. immigration benefits within two years of the enactment date before October 28, 2011. Otherwise, foreign nationals whose U.S. citizen spouse dies following the enactment of this law, must file for U.S. residence within two years of their spouse’s death.

Other Family Based Petitions Where Petitioner Dies Before Petition Approval

Basic immigration law says that if a family based U.S. citizen or resident petitioner dies, so does the petition. In the past, only if the petition was approved prior to the petitioner’s death, could the foreign family member seek to have the petition reinstated by way of a humanitarian reinstatement request. Now, under the new law, if any family based preference I-130 petition on file was unprocessed by the time of the petitioner’s death, CIS now has authority to continue the processing and approve the petition, as long as such continued processing is not determined to be “against the public interest.” This new provision only applies to beneficiaries of family based petitions who resided in the U.S. at the time of their petitioning relative’s death.

Further, as to I-130 petitions that were approved prior to the petitioner’s death, but before the availability of visa numbers in any of the family based preferences, the humanitarian reinstatement process must still be initiated and the request must be approved to preserve the viability of the petition to facilitate an immigration benefit. HOWEVER, based on recently released guidance, it looks like the bar to getting a case reinstated on humanitarian grounds just got lower (again, only for beneficiaries in the U.S. at time of the petitioner’s death) –with the applicable language reading: “While there are no other rules or precedents on how to apply this discretionary authority, reinstatement may be appropriate when revocation is not consistent with the “furtherance of justice, especially in light of the goal of family unity that is underlying premise of our nation’s immigration system.”

For surviving beneficiaries residing abroad, the usual humanitarian reinstatement process and tougher adjudicative standard will be at play, where the following factors will be taken into account and assessed:

  • Impact of revocation on the family unit in the U.S., especially on the U.S. citizen or LPR relatives or other relatives living in the U.S. lawfully.
  • Beneficiaries advanced age or poor health,
  • Beneficiary’s having resided in the U.S. lawfully for a lengthy period,
  • Beneficiary’s ties to his or her home country and
  • Significant delay in processing the case after approval of the petition AND after a visa number has become available.

Other foreign national family members of a deceased who reside in the U.S. who were previously ineligible for U.S. immigration benefits, but have new eligibility based on the above law include:

  • Derivative (spouse and children under 21 years) family members of a Deceased Principal Beneficiary of an Employment Based Immigration Petition (I-140)
  • Certain T and U visa family members
  • Certain Asylees/Refugees relative petition beneficiaries.

Like the federal statute at issue, the recently released guidance is quite complicated, and likely each person’s situation will require a careful individual assessment and analysis to determine exactly what benefits are available and which processes and standards govern.

Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois