New Immigration Legislation to Benefit Widow(er)s of U.S. Citizens and Other Surviving Family Members of Deceased Petitioners and Applicants; Significant Questions Remain
Published: December 2, 2009

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 continue to linger.

Widows and Widowers of U.S. Citizens

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.

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.

Lastly, children of the above class of applicants who are under 21 years old may also be included in the U.S. immigration filing, although CIS Headquarters may soon have more details on eligibility for this class of applicants. Stay tuned.

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.

Interpretation: Based on my review of conflicting Internet articles purporting to interpret this law — written by both experts and non-experts alike — there remains a slew of hugely important questions in need of answers. The most important questions relate to whether beneficiaries in the above class of family based petitions residing in the U.S. still need to apply for humanitarian reinstatement of the governing I-130 petition before seeking adjustment of status (the final stage in the immigration process).

Although it appears that beneficiaries whose petitioning relative dies after the beneficiary files for adjustment of status will not need to apply for humanitarian reinstatement, it seems there is much confusion as to whether such reinstatement must be sought if the U.S. petitioning relative dies while merely awaiting visa availability and prior to filing for adjustment of status. It would not surprise me in the least if CIS Headquarters ultimately confirm that — aside from cases where the beneficiary has already filed for adjustment of status — humanitarian reinstatement must be sought in all cases where the petitioner dies prior to the beneficiary obtaining permanent residence.

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

As stated, CIS Headquarters has much work to do in interpreting this new law and giving guidance on many important unanswered questions. Our readers will be kept current on all developments in this regard.