Dear Atty. Lou,
I write to you on behalf of my aunt who was married to a US citizen. She met her husband while working in a health care facility. They married in October 2008 after knowing each other for one year. My aunt is an overstaying visitor and has no valid immigration status.
On January 2009, my aunt’s US citizen husband filed a petition for immediate relative so that my aunt will get a green card. Unfortunately, her husband suffered a heart attack in March 2009 and passed away after two days. Now my Aunt received a letter in the mail from the US Citizenship and Immigration Service asking that she and her husband appear for the interview. Since my aunt is now a widow and she no longer has a petitioner, she is afraid that she will be arrested if she appears before an immigration officer.
Lately, we read on the news about the widows of US citizens and some immigration benefits. Does this mean that my aunt will get her green despite the fact that her petitioner spouse passed away already? Please enlighten us on this matter so that my aunt will be aware of her options. Thank you in advance for your response.
Katie in Arizona
Dear Katie,
A widow of a US citizen may self petition for green card despite the death of her husband as long as she has been married for at least two years and the self petition is filed within two years from date of the death of the spouse. In the particular case of your aunt, she has only been married for less than a year before your US citizen uncle died, hence, under current legislation, she is not eligible to apply for green card as a self petitioning spouse.
In one of the cases filed in California, Freeman v. Gonzales (9th Circuit 2006), the court ruled that if the US citizen spouse died while the petition was pending, the petition could still be approved after the citizen’s death. Because of this ruling, many widows filed a reconsideration of their denied petitions. After this court ruling the US Citizenship and Immigration Service issued restrictive guidance against widows of US citizens resulting in many more denied cases of widow cases.
However, on June 9, 2009, the U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano came out with a new guidance where it granted deferred action for two years to widows and widowers of U.S. citizens—as well as their unmarried children under 18 years old—who reside in the United States and who were married for less than two years prior to their spouse’s death.
Napolitano issued three directives: (1) for U.S. Citizenship and Immigration Services (USCIS) to suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse prior to the second anniversary of the marriage; (2) for U.S. Immigration and Customs Enforcement (ICE) to defer initiating or continuing removal proceedings, or executing final orders of removal against qualified widow(er)s and their eligible children and (3) for USCIS to consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law. DHS will soon issue guidance instructing the public on how to apply for this relief.
Your aunt may take advantage of this recent DHS directive since she is one of the widows of the US citizens that will benefit from this deferred action by USCIS. It must be noted though that this is a temporary relief only and unless new legislation is passed, no permanent resident status shall be granted to widows who were married for less than two years.
I hope this information is helpful.
Atty. Lou
(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)
