Spouse of Deceased US Citizen Remains to be Immediate Relative

The Congress recently enacted a new law to address an issue in a situation where an U.S. citizen filed a form I-130 to petition green card for his or her spouse and the U.S. citizen deceased before the form I-130 is approved and the death happened before the second anniversary of the marriages.  The issue is whether the underlying form I-130 can continue on the death of the U.S. citizen.  The U.S. Immigration and Citizenship Services (USCIS) declined many I-130 cases in that situation and many lawsuits followed.  The Federal Courts of Appeals have different views on this issue and most courts ruled against the USCIS.

To resolve the inconsistency among the courts, Congress recently acted upon this issue; and on October 28,2009, President Obama signed the new bill into law as the FY2010 DHS Appropriations Act. Section 568(c) which amends the second sentence in section 201(b)(2)(A)(i) of the Immigration and Naturalization Act (INA).  As a result, a widow(er) of a citizen can remain to qualify as an immediate relative.  It is no longer necessary for the couple to have been married at least two years when the citizen died. Now the second sentence of INA section201(b)(2)(A)(i) reads as follows:

“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 ofthe 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) ofthe INA] within 2 years after such date and only until the date the spouse remarries.”

When a widow(er) 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 INA, 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 1-130 pending on October 28,2009. Ifno Form 1-130 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 (a) the alien has not remarried, and (b) the petition is filed no later than October 28, 2011.

The new law only affect the citizen’s death on the alien’s eligibility for classification as an immediate relative. All other requirements for approval of a visa petition remain the same. In particular, the alien spouse must still establish that he or she was the citizen’s legal spouse, and that the marriage was a bona fide marriage and not an arrangement solely to confer immigration benefits on the alien. If the alien was in removal proceedings at the time of the marriage, the “clear and convincing evidence” standard in section 245(e)(3) of the INA still applies. If the necessary visa petition is approved, the alien may then seek an immigrant visa or adjustment of status. The alien must still establish that he or she is admissible as an immigrant and, in an adjustment case, that he or she meets all other adjustment eligibility requirements and merits a favorable exercise of discretion.

Because of this new law, the USCIS abolishes its November 8, 2007 memo entitled “Effect of Form 1-130 Petitioner’s Death on Authority to Approve the Form 1-130” and issued a new memo dated December 2, 2009 as amendment to this issue.

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