Rules for Widows/Widowers of U.S. Citizens to Immigrate After Petitioner's Death

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Sections 568(d) and (e) of the FY2010 DHS Appropriations Act provided relief for aliens who are the surviving beneficiaries of pending or approved petitions filed by U.S. citizen petitioners.  In the past, USCIS policy was to deny the I-130 petition if the petitioner died while the petition was still pending. It would, in some cases, approve a petition for humanitarian reasons. Also, the automatic revocation provisions did not apply to a spousal immediate relative visa petition if the deceased petitioner and the alien widow or widower had been married at for least two years when the petitioner died.

Here is how the new law improves matters for other family beneficiaries.

Rules Governing Beneficiary Options After Death of Petitioner

  1. Section 568(c) of FY2010 DHS Appropriations Act
  2. USCIS will Reopen Pending I-130 Cases
  3. USCIS will Reopen Pending Adjustment of Status Applications (I-485)
  4. Abandoned I-485 Adjustment of Status Applications
  5. Automatic Conversion of Petitions Approved Before Death
  6. Admissibility Issues
  7. Subsequent Remarriage
  8. Widow/Widower with no Pending I-130
  9. Children of Widowers/Widows are Automatically Included in the Converted I-360
  10. Affidavits of Support
  11. Conversion of Deferred Action Applications Filed Under Prior Law

How Section 568(c) of FY2010 DHS Appropriations Act Changes the I.N.A.

Section 568(c) of the new law amends the second sentence in Section 201 (b)(2)(A)(i) of the Immigration and Nationality Act (I.N.A.) so that, for a widow or widower of a citizen to qualify as an immediate relative, it is no longer necessary for the couple to have been married for at least two years when the citizen died. The second sentence of Section 201 (b)(2)(A)(i) now reads:

"In the case of an alien who was the spouse of a citizen of the United States and was not legally separated from the citizen at the time of the citizen's death, the alien (and each child of the alien) shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen's death but only if the spouse files a petition under [Section 204(a)(1)(A)(ii) of the I.N.A.] within 2 years after such date and only until the date the spouse remarries."

When a widow or widower qualifies as an immediate relative under the second sentence in Section 201 (b)(2)(A)(i) of the INA, his or her children (as defined in Sections 101(b)(1) and 20l(f) of the I.N.A.), also qualify. The amendment made by Section 568(c) applies equally to aliens abroad who are seeking immigrant visas and aliens in the United States who are seeking adjustment of status. The amendment applies to any alien whose spouse died before October 28, 2009, and who had a Form I-130 pending on October 28, 2009.

If no Form I-130 was pending, then an alien whose U.S. citizen spouse died before October 28, 2009, and before the second anniversary of their marriage, may file a visa petition under section 204(a)(l)(A)(ii) of the INA so long as:

  1. The alien has not remarried, and
  2. The petition is filed no later than October 28, 2011

Section 568(c) relates to the citizen’s death and its impact on the alien's eligibility for classification as an immediate relative.  All other requirements for approval of a visa petition remain in force.  Specifically, the beneficiary must establish that he/she was the citizen's legal spouse, and that the marriage was a bona fide marriage and not an arrangement to confer immigration benefits on the alien beneficiary  

If the alien beneficiary was in removal proceedings at the time of the marriage, the "clear and convincing evidence" standard in section 245(e)(3) of the INA will apply to the adjudication of the visa petition.  If the visa petition is approved, the alien may then seek an immigrant visa or adjustment of status.  The alien must establish that he or she is admissible as an immigrant and, in the adjustment case, that he or she meets all other adjustment requirements and merits a favorable exercise of discretion.

Pending Cases

Section 568(c)(2)(A) of the FY2010 DRS Appropriations Act makes the amendment to the second sentence in INA section 201 (b)(2)(A)(i) applicable to any visa petition or adjustment application pending on or after October 28, 2009, the date of enactment.

1. USCIS will Reopen Pending I-130 Cases

If the deceased citizen filed Form I-130 before the law’s effective day Form I-130 will be deemed "pending" if:

  • USCIS has not adjudicated the Form I-130;
  • USCIS denied the Form I-130, but USCIS granted a motion to reopen or reconsider, so that the Form I-130 is, again, pending;
  • USCIS denied the Form I-130, but has not yet ruled on a motion to reopen or reconsider;
  • USCIS denied the Form I-130, but the alien's appeal from that decision is pending before the Board of immigration Appeals (BIA) or the period for appeal of the adverse USCIS decision to the BIA had not yet expired; or
  • The USCIS or BIA decision denying the Form I-130 is the subject of pending litigation before a federal court (including cases in which the district court issued a decision before October 28,2009, but the appeals period established by law had not yet expired).

Under 8 C.F.R. § 204.2(i), a citizen's spousal Form I-130 is automatically converted to a widow/widower’s Form I-360 if, on the date of the citizen's death, the beneficiary qualifies as a widow or widower under the second sentence in section 201(b)(2)(A)(i).  Under section 568(c) of the FY2010 DRS Appropriations Act, the surviving spouse now qualifies under the second sentence.  Thus, any Form I-130 that is "pending" will be processed as a widow/widower’s Form I-360.

If USCIS has not acted on the motion to reopen, it will grant the motion and make a new decision in light of section 568(c) of the FY20 I0 DRS Appropriations Act.  Any Petitions for Alien Relative on Form I-130 which are subject of litigation in any federal court will be resolved in accordance with the new law.  The beneficiary need not file a separate motion.  The petition will be adjudicated even if the beneficiary is currently in the United States or abroad.  Any pending federal court cases denying or terminating action on the Form I-130 will be reopened and re-adjudicated as a Form I-360. 

2. USCIS will Reopen Pending Adjustment of Status Applications (I-485)

Section 568(c)(2)(A) of the FY2010 DHS Appropriations Act also makes the amendment applicable to any Form I-485 that was pending on the date of enactment.  A Form I-485 is deemed "pending" on the date of enactment if it was filed before the deceased citizen's death but:

  • USCIS has not adjudicated the Form I-485
  • USCIS denied the Form I-485, but USCIS granted a motion to reopen or reconsider, so that the Form I-485 is, again, pending
  • USCIS denied the Form I-485, but has not yet ruled on a motion to reopen or reconsider;
  • The Form I-485 is the subject of litigation before a federal court (including cases in which the district court issued a decision before October 28, 2009, but the appeals period established by law had not yet expired).

Any Petition for Adjustment of Status which is subject of litigation and within jurisdiction of USCIS will be reopened.  USCIS will notify beneficiaries that Form I-485 is reopened pursuant to Section 568(c) of the FY2010 DHS Appropriations Act.

In the case of a widow or widower who entered the United States as a K-l nonimmigrant, and filed a Form I-485 after marrying the deceased citizen who had filed the Form 1-129F, Form I-485 will be reopened without a formal motion.  Because the petitioner is not required to file Form I-130 for a K-1 beneficiary to seek adjustment, the K-1 nonimmigrant will also be deemed the beneficiary of a Form I-360 if the K-1 nonimmigrant qualifies as a widow or widower.  The K-1 nonimmigrant, however, may not adjust on any basis other than the K-1 marriage to the deceased petitioner of the Form I-129F. 

If an alien has been placed into removal proceeding after USCIS denied their Forms I-485, this means that USCIS no longer has jurisdiction to adjudicate the Form II-485 pursuant to 8 C.F.R. § 245.2(a)(1) and 1245.2(a)(1).  USCIS will have jurisdiction to adjudicate the Form I-485 only if the Executive Office for Immigration Review (EOIR) terminates the removal proceeding.  It’s up to U.S. Immigration and Customs Enforcement (“ICE”) to support or oppose terminating a removal proceeding.  If a local USCIS office reopens a Form I-130 for a beneficiary of a deceased United States citizen spouse who is in removal proceedings, the USCIS office will inform attorney for ICE.   

3. Abandoned I-485 Adjustment of Status Applications

Those beneficiaries who left the United States after the death of their U.S. citizen spouses, are considered to have abandoned their adjustment of status application pursuant to 8 C.F.R. § 245.2(a)(ii)(4)(B).  Also abandoned is the adjustment application of an alien who left as the result of removal proceedings pursuant to 8 C.F.R. § 245.2(a)(4)(ii)(A).  Under this scenario, a Form I-485 is not deemed "pending" for purposes of section 568(c)(2)(A).  However, where section 568(c) applies to the approved Form I-130, and the Form I-130 has been approved as a Form I-360, the alien who has left the United States may apply for an immigrant visa abroad.

4. Automatic Conversion of Petitions Approved Before Death

If a widow or widower is the beneficiary of a Form I-130 that was approved before the citizen petitioner's death, it is not necessary for the widower or widow to request humanitarian reinstatement of the approval.  Under 8 C.F.R. § 204.2(i)(1 )(iv), the approved Form I-130 is automatically converted to an approved Form I-360.  Any children of the widow or the widower are also eligible to seek an immigrant visa or adjustment of status based on the converted petition.

In cases where a spousal immediate relative Form I-130 was approved, but the approval was revoked automatically under 8 C.F.R. 205. 1(a)(3)(i)(C) upon the citizen petitioner's death, the alien is eligible for classification as the widower or widow under section 568(c)(2)(A) of the FY2010 DHS Appropriations Act.  The approval is deemed to have been reinstated as of October 28, 2009.  No separate request for reinstatement is necessary.  Under 8 C.F.R. § 204.2(i)(1)(iv), the Form I-130 is deemed to be an approved Form I-360.

5. Admissibility Issues

The issues of inadmissibility are not implicated by enactment of section of 568(c).  The only issue resolved by enactment of section 568(c) of the FY2010 DHS Appropriations Act is that the death of the citizen spouse, by itself, does not make the widow or widower ineligible for immediate relative classification.  Thus, the alien must still be admissible as an immigrant to obtain adjustment of status or an immigrant visa.

For those aliens, however, who had pending Form I-130 cases, and who now can benefit from section 568(c) of the FY2010 DHS Appropriations Act, two inadmissibility grounds warrant special consideration.  

  1. Section 212(a)(9)(B)(i) of the Act, under which an alien is inadmissible if the alien seeks admission within a specified period after the alien leaves the United States, if the alien has accrued a lengthy period of unlawful presence; and
  2. Section 212(a)(9)(A), under which an alien who has been removed (or who left the United States while under a final administrative order of removal) must obtain consent to reapply, if the alien seeks admission within the period set in section 212(a)(9)(A).

Provisions relating to INA section 212(a)(9)(A) and (B) apply only to an alien who was the beneficiary of a Form I-130 that was filed by a now-deceased spouse petitioner, which now can be approved as a Form I-360 under section 568(c) of the FY2010 DHS Appropriations Act.

A. Unlawful Presence

Remarkably for INA section 212(a)(9)(B)(i), if an alien remained in the United States while awaiting the outcome of Form I-130 that can now be approved as a Form I-360 under section 568(c) of the FY2010 DHS Appropriations Act, the alien is deemed not to have accrued any unlawful presence.  This protection applies even if the alien was not actually in a lawful status while the now-converted Form I-360 was pending.

An alien who had a Form I-130 pending on October 28, 2009, but who is present in the United States without a lawful admission or parole generally cannot obtain adjustment under INA section 245(a).  Rather, the alien must generally seek adjustment under INA section 245(i).  But this relief is not available to an alien who did not have a petition or labor certification filed before April 30, 2001.  Thus, even if the Form I-130 can now be approved as a Form I-360, the alien may need to leave the United States to obtain an immigrant visa.  According to USCIS’ guidance, the alien is deemed not to have accrued any unlawful presence, he or she will not be inadmissible under INA section 212(a)(9)(B)(i).

Again, the provisions on the accrual of unlawful presence apply only to an alien who is a beneficiary of a spousal immediate relative Form I-130 petition which was pending on October 28, 2009, and which is now approved under section 568(c)(2)(A) of the FY2010 DHS Appropriations Act and 8 C.F.R. § 204.2(i)(1)(iv) as a widow or widower’s Form I-360:

  • The widow or widower; and
  • His or her accompanying children. 

Ordinarily, the pendency of a visa petition, itself, does not prevent accrual of unlawful presence. A pending adjustment application, by contrast, does prevent accrual of unlawful presence.  Most aliens who have been in litigation because the death of a spouse led to denial of the Form I-130 are probably already protected from unlawful presence.  The new laws broader protection against unlawful presence, for this narrow class of cases, is designed to maximize the ability of those aliens whose specific situations gave rise to the new legislation to fully benefit from it.

B. Consent to reapply for admission after removal

The protections against accrual of unlawful presence apply even if the alien was actually removed from the United States under a removal order.  Still, because the alien was removed under a valid order, the alien is inadmissible under INA section 212(a)(9)(A)(i) or (ii). USCIS, however, has discretion under section 212(a)(9)(A)(iii) to consent to the alien's re-application for admission.  USCIS will exercise favorable discretion and grant an application for consent to reapply under section 212(a)(9)(A)(iii), if:

  • The Form I-130 that had been filed by the alien's spouse has now been approved as a Form I-360 under section 568(c) of the FY2010 DHS Appropriations Act;
  • The alien is otherwise admissible, and
  • The alien's case does not present significant adverse factors beyond the removal itself.  USCIS will not deny a Form I-212 filed by an alien whose case was in litigation on October 28, 2009, and whose Form I-130 has been approved as a Form I-360 under section 568(c)(2)(A) of the FY2010 DHS Appropriations Act.

6. Subsequent Remarriage

Any immediate relative petition on Form I-130 that was filed by a U.S. citizen spouse and that was pending on October 28, 2009, is no longer a spousal immediate relative petition.  By operation of 8 C.F.R. § 204.2(i)(I)(iv), it is automatically converted to widower or widow’s Form I-360.  The converted Form I-360 may be approved only if the beneficiary, who is now deemed to be the petitioner, qualifies as the widow or widower of a deceased U.S. citizen, as described in INA section 201(b)(2)(A)(i).  Eligibility for classification as an immediate relative continues "only until the date the spouse remarries."

Widow/Widower with no Pending I-130

The alien beneficiary widow/widower of a U.S. citizen who did not have a pending I-130 petition as of October 28, 2009, may now file a Form I-360, provided that he or she does so no later than October 28, 2011, and he/she is not remarried.  

The new law covers the cases where the citizen spouse did not file a Form I-130 on the beneficiary’s behalf before dying.  The law covers the situations there was a Form I-130 filed, but the denial of the Form I-130 had become administratively final before October 28, 2009, and decision was not subject of administrative or judicial review that was pending on October 28, 2009.

Pursuant to section 568(c)(2)(B)(i) Form I-360 must be filed "not later than the date that is 2 years after the date of the enactment" of the law.  Therefore, any I-360 filed on or before October 28, 2011 is timely.  For any case in which a citizen dies after October 28, 2009, the alien beneficiary widow/widower must file the Form I-360 within 2 years of the petitioner’s death. 

Children of Widowers/Widows are Automatically Included in the Converted I-360

The child of a widower or widow whose Form I-360 is approved may, as specified in the second sentence of INA section 201(b)(2)(A)(i) and in INA section 204(a)(1)(A)(ii), be included in the widow/widower’s petition.  Whether an individual qualifies as the widow/widower’s "child" is determined according to INA sections 101(b)(l) and 20l(f).

In a case in which the deceased citizen had filed a Form I-130 for his or her spouse, and the Form I-130 can now be adjudicated as a Form I-360 widow/widower’s petition, the child of the widow/widower are deemed to be included in the converted Form I-360.  Thus, it will not be necessary to act on any separate Form I-130 that the deceased may have filed for the widow/widower’s child.  The child of the widower/widow is deemed to be included in the converted Form I-360 even if the deceased citizen had not filed Form I-130 for the child.

According to INA section 201(f), whether an individual qualifies as the "child" of a widow/widower depends on the person’s age when the visa petition was filed.  For the cases that were pending on October 28, 2009, the Form I-360 filing date is deemed to be the date on which the deceased filed Form I-130.  If a widow/widower has an unmarried son or daughter who was under 21 when Form I-130 was filed, the child is still deemed to be under 21 for purposes of the widow/widower’s automatically converted Form I-360. 

Affidavits of Support

Pursuant to section 212(a)(4)(C)(i)(I) of the INA, a Form 1-864 (Affidavit of Support under Section 213A of the Act) is not required in the case of the widow/widower and her/his children. 

Conversion of Deferred Action Applications Filed Under Prior Law

While the law was pending in Congress, the Secretary of Homeland Security directed the use of deferred action relief to allow widow/widowers of deceased citizen to remain in the United States.  Beneficiaries were instructed to file I-360 as the form to request deferred action.

As of October 28, 2009, any Form I-360 that had been filed to obtain deferred action relief, and that has not yet been adjudicated as a deferred action request, is considered to be, and adjudicated as, a widow/widower’s visa petition under 8 C.F.R. § 204.2(b).  If the Form I-360 has already been approved as a deferred action request, it will be reopened and adjudicated as a visa petition under 8 C.F.R. § 204.2(b).  It is not necessary for the beneficiary to file a formal motion, nor to pay a new Form I-360 filing fee.  Additionally, any prior grant of deferred action relief need not be rescinded and should remain undisturbed.

Since Form I-360 filed to request deferred action is now construed as a widow/widower’s visa petition, the alien can, if otherwise eligible, file a Form I-485 before the approval of the Form I-360 in accordance with 8 C.F.R § 245.2(a)(2)(i)(B).  Filing the Form I-485 permits the alien to file a Form I-765 in accordance with 8 C.F.R. § 274a.l2(c)(9).

This information is general in nature and is not specific legal advice.  It does not create an attorney-client relationship.  For more detailed information regarding the new law affecting widows and widowers and their right to petition for adjustment of status or visa, please contact our office.  

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