Relief for Surviving Spouses of U. S. Citizens by Deferred Action by USCIS

USCIS Provides Interim Relief by Deferred Action for Surviving Spouses of U. S Citizens Married Less Than Two Years

Lal Varghese, Attorney at Law, Dallas

U.S. Department of Homeland Security (DHS) would grant deferred action relief to surviving spouses of U.S. citizens who died before the second anniversary of their marriage. U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for an adverse decision (denial of application) from USCIS would be the death of a U.S. citizen spouse before the second anniversary of their marriage. Until there is a legislative solution to remedy the situation commonly referred to as the “widow penalty,” USCIS will provide interim administrative relief in the form of deferred action to surviving spouses whose U.S. citizen spouses died before the second anniversary of their marriage. The “widow penalty” prevents widow(er)s of deceased U.S. citizens from becoming lawful permanent residents on the basis of the petition filed by their late U. S citizen spouses or from later self-petitioning to change their status if the U.S. citizen dies before the second anniversary of their marriage.

Under this new administrative guidelines, surviving spouses, whose U.S. citizen spouses died before the second anniversary of their marriage, qualifies for deferred action if they: were married to, but not legally separated or divorced from their U.S. citizen spouse at the time of that spouse’s death; did not remarry again; and are currently residing in the United States, regardless of whether the U.S. citizen spouse filed a Form I-130 petition for the foreign spouse before his or her death. Additionally, deferred action under this program is also available to the qualifying children of the surviving spouse who are younger than age 21 (at the time the request for deferred action is submitted or a Form I-130 was filed on their behalf as an immediate relative); currently residing in the United States; and unmarried.

Deferred action is an exercise of prosecutorial discretion not to pursue removal proceedings of a particular alien for a particular period. Deferred action is not intended to be a permanent remedy to the “widow penalty,” rather it is a temporary discretionary solution to an issue that is subject to ongoing legislative and judicial actions. The grant of deferred action by USCIS does not confer or alter any immigration status. Deferred action does not eliminate any periods of unlawful presence that accrued before it was granted; however, no additional unlawful presence accrues during the time that the deferred action is in effect. The grant of deferred action does not convey or imply any waivers of inadmissibility that may exist, regardless of whether that inadmissibility is known to USCIS at the time of the request for deferred action. Likewise, deferred action cannot be used to establish eligibility for any immigration benefit that requires maintenance of lawful status.

In order to claim the relief of deferred action, applicants must file Form I-360 with fee with the Vermont Service Center. Applicants are not eligible for deferred action if the alien is the: Surviving spouse of a deceased U.S. citizen, or qualifying child who is residing outside the United States; Surviving spouse or child of a lawful permanent resident alien or other non-U.S. citizen; Surviving spouse of a deceased U.S. citizen or qualifying child if the surviving spouse remarried at any time after the U.S. citizen’s death (regardless of whether or not the subsequent marriage has been terminated); Surviving spouse who was legally separated or divorced from his or her U.S. citizen spouse at the time of the citizen’s death (or the surviving spouse’s child); U.S. born child of either the surviving spouse or the deceased U.S. citizen spouse or such beneficiary’s children; or Deceased U.S. spouse’s child who previously derived U.S. citizenship.

A grant of deferred action is a discretionary action on the part of USCIS. In addition to basic eligibility criteria as described above, USCIS will consider whether any serious adverse factors exist, such as national security concerns, significant immigration fraud, commission of other crimes, or public safety reasons. In addition, applicants whose visa petition was denied or revoked for any reason other than or in addition to the death of the petitioning U.S. citizen spouse are not eligible for deferred action under this program. Denial of a deferred action request may not be appealed.

The validity period of deferred action granted based on this program is two years. Once granted deferred action, the applicant will receive a grant letter indicating the duration of validity, specifics regarding the program, and ability to request employment authorization. Surviving alien spouses of U.S. citizens who died before the second anniversary of their marriage and the children of those surviving alien spouses who have been granted deferred action relief under this program are eligible to apply for an Employment Authorization Document (EAD) by completing Form I-765 with appropriate fees. The validity period is two years, not to exceed the expiration date of the grant of deferred action. Applicants may submit a Form I-765, with the appropriate filing fee, using this category if applicants wish to seek employment authorization under this program; however, they must demonstrate an economic necessity.

Federal regulations require that the approval of Form I-130, Petition for Alien Relative, be automatically revoked upon the death of the petitioner if the beneficiary has not already adjusted status in the United States or been inspected and admitted as an immigrant. Thus, once USCIS receives notice of the death of the U.S. citizen petitioner the approved I-130 petition is automatically revoked. However, the beneficiary may request humanitarian reinstatement of the revoked petition. USCIS may then exercise discretion and grant the reinstatement after considering the facts and humanitarian considerations of the particular case. If the request for humanitarian reinstatement request is approved, then the beneficiary may proceed to the adjustment of status or consular processing stage. Since an avenue for permanent resident status already exists for this group, the beneficiary is not eligible to seek deferred action under this program. While each case will be considered individually on its merits, USCIS generally will give favorable consideration to requests for humanitarian reinstatement made by eligible widow(er)s. If the request for humanitarian reinstatement is denied, the beneficiary may file for deferred action status by submitting a completed Form I-360 with the Vermont Service Center of the USCIS.

Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You can visit our website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa@yahoogroups.com for more information about other related immigration matters.