The Widow Penalty
Deferred Action for Surviving Spouses of US Citizens: USCIS Temporarily Suspends the Widow Penalty
The death of a husband or wife is one of the worst tragedies a person can suffer. Unfortunately, for many immigrants, the death of their US citizen previously had serious negative consequences on their immigration status.
Previously, the surviving spouse of a deceased US citizen must have been married for two (2) years at the time of the US citizen’s death in order to be eligible to file a widow petition. This is referred to as the “widow penalty.” Until June of this year, if a US citizen spouse died before adjudication of the visa petition, the visa petition was terminated with no relief for the surviving spouse, if she had been married less than two (2) years at the time of death. In most instances, the surviving spouse was referred to the Immigration court and placed into removal (deportation) proceedings.
On June 15, 2009, USCIS issued a new memorandum providing guidance on how to process the petitions and applications of the surviving spouses of deceased US citizens and their qualifying children. USCIS will temporarily suspend the adjudication of adjustment applications and visa petitions where the sole reason for a denial would be that the surviving spouse and US citizen husband were married less than two (2) years at the time of the US citizen’s death. The surviving spouse of a US citizen married less than two (2) years may now file for deferred action. Deferred action is an exercise of prosecutorial discretion not to pursue removal (deportation) of a foreign-born national for a specified time period.
Who can Apply for Deferred Action
Deferred action is available only to the surviving spouses of the US citizen’s, where the US citizen died before their second anniversary, were not legally separated from the US citizen spouse at the time of death, and who are residing in the United States. Moreover, qualifying children of the surviving spouse are also covered under the memorandum. According to the memorandum, qualifying children are children of the surviving spouse who are under the age of 21 and remain unmarried.
Furthermore, there is no restriction on how long the US citizen spouse has been deceased as long as the surviving spouse has not remarried. In addition, the manner of entry of the surviving spouse does not matter.
The surviving spouse whose visa petition or adjustment application was previously denied because as a result of the death of the US citizen spouse and before the memorandum was issued may submit a request for deferred action.
Under the memorandum, a surviving spouse of US citizen may make a request for deferred even though a visa petition (Form I-130) was never filed before the death of the US citizen spouse.
Who Cannot Apply for Deferred Action
Surviving spouses of US citizens who were married two (2) years or more are not eligible to file for deferred action. Under the immigration laws, that spouse is still considered an immediate relative and can file Form I-360 (Petition for Amerasian, Widow(er) or Special Immigrant) as the widow of US citizen.
The death of the US citizen spouse results in the automatic revocation of the visa petition of the immigrant spouse. However, where the visa petition has been approved, the surviving spouse can request that the visa petition be reinstated on humanitarian grounds. Once USCIS reinstates the petition, the surviving spouse may file for adjustment of status (green card). Accordingly, a surviving spouse whose visa petition was approved is not eligible to request file for deferred action. The surviving spouse must make a request to have the visa petition reinstated based on humanitarian grounds and must follow that path.
The surviving spouse that is residing outside the US, has met the conditional marriage period, or has remarried is not eligible to request deferred action. The surviving spouse of non US citizen is also ineligible.
Request for Deferred Action
To apply for deferred action, the beneficiary must complete and submit Form I-360 to the Vermont Service Center in St. Albans, Vermont. The form must include the filing fee of $375.00. With this form, the surviving spouse must submit the same supporting documentation as the widow(er) of US citizen. In Part 2 of the Form I-360, the surviving spouse must check the box “m. Other Explain:” and cite the basis for eligibility as “Deferred Action: Surviving Spouse of deceased US citizen, married less than 2 years.” The surviving spouse must also complete Parts 1, 3, 4, 7, 9, 10 and 11 of Form I-360.
The grant of deferred action is discretionary and the memorandum instructs that this discretion be liberally applied to provide a humanitarian benefit to eligible beneficiaries. Once deferred action is granted, the period of validity of the deferred action is 2 years.
If the request for deferred action is denied, a letter with reasons for the denial must be sent to the surviving spouse. There is no appeal from this decision.
Employment Authorization
Following the grant of deferred action, the beneficiary surviving spouse can apply for work authorization on Form I-765 with filing fee of $340.00. When completing Form I-765, the beneficiaries must cite (c)(14) as the classification for the basis for employment authorization. In addition, the beneficiary must demonstrate an economic necessity. If granted work authorization, the validity of the work authorization will be 2 years, but cannot exceed the expiration date of the grant of deferred action.
Significantly, if the surviving spouse had an application for adjustment of status, Form I-485, pending and it is being held in abeyance, the surviving spouse may file an for work authorization on Form I-765. The spouse must list c(9) as the appropriate classification for employment authorization. In this instance, there is no need to show economic necessity. If granted, the employment authorization will be valid for a period of 2 years.