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Changes to Surviving Spouse Immigration Law

NOTE: This article may have become moot as there has been a Policy Memorandum issued by the Department of Homeland Security and Revisions made to to the Adjudicator’s Field Manual. Click to view DHS’ Policy Memorandum on Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act
Explanation of DHS’s Appropriations Act, 2010, Pub. L. 1211-83 and specifically how it affected the Surviving Spouses and Children of Legal Permanent Residents

President Obama on October 28, 2009 signed the Department of Homeland Security’s Appropriations Act 2010, Pub L. 1211-83 which amended the Immigration and Nationality Act to provide additional benefits to surviving spouses and children of deceased US Citizens and Legal Permanent Residents who were attempting to legalize their spouse and/or children when they died.

This article will briefly touch on the amendment to the Immigration and Nationality Act dealing with widows and children of deceased US Citizens and a recent Interoffice Memorandum from Acting Associate Director Donald Neufeld, Associate Director Lori Scialabba, and Acting Chief Pearl Chang dated December 2, 2009. The article will then provide an argument to be made for surviving spouses and children of Legal Permanent Residents and other non-US Citizens as they are not addressed in the above-mentioned Interoffice Memorandum.

Section 568(c) of DHS’s Appropriation Act 2010

First, the amendment to the Immigration and Nationality Act for spouses and children of US Citizens was in Section 568(c) of DHS’s Appropriations Act 2010. The amendment changed the language of the INA to now consider widows and children of US Citizens as immediate relatives even if the widow and the deceased US Citizen were married for less than 2 years. Before this amendment, there was a division in the Courts as to whether or not widow aliens who were married for less than 2 years were still immediate relatives for immigration purposes. Now, all widows who had an I-130 approved or pending on October 28, 2009 who have not remarried can apply for adjustment of status to get their green card as an immediate relative. The other requirements of adjustment of status such as bona fide marriage and admissibility are still required. This means that the window must still show that the marriage was entered into in good faith and that that couple did not enter into the marriage just to confer immigration benefits. It also means that the widow must be admissible and cannot have committed certain crimes or have other inadmissibility issues.
Section 568(d) of DHS’s Appropriation Act 2010

Next, the Interoffice Memorandum mentioned above barely touched on the other amendment to the INA which was specified in Section 568(d) of DHS’s Appropriations Act 2010. This section relates to spouses and children of Legal Permanent Residents, which in practice will likely be used by widows because of the long wait times for spouses and children of Legal Permanent Residents.

On page 2 of the Interoffice Memorandum, dated December 2, 2009, the authors specifically state that a separate memorandum will set forth more information about the relief under section 568(d) of the Appropriations Act 2010 for aliens who are surviving beneficiaries of non-citizens, but rather Legal Permanent Residents. While the Service is awaiting the forthcoming memorandum, which would address this petition, one should argue that the Service is required to follow the law as written.

What does the law currently say? Section 204(l)(1) of the Act states that petitions for aliens described in paragraph (2) should be adjudicated unless the approval would not be in the public interest. Paragraph (2) is INA §204(l)(2) and it describes an alien in a few ways. One applicable description would be in INA §204(l)(2)(B) which states “the beneficiary of a pending or approved petition for classification under section 203(a) or (d).”

The Appropriations Act 2010, specifically, section 568(d) amends INA §204(l) requiring the Service to adjudicate pending petitions for alien spouses notwithstanding the death of the petitioner so long as (1) the alien was present in the United States when the petitioner died, (2) the alien continues to reside in the United States and (3) approval of the petition would not be against public interest. Further, this amendment applies to those aliens described in INA §204(l)(2), also amended by section 568(d) of the Appropriations Act 2010. Section 204(l)(2)(B) of the Act, as mentioned above, covers aliens which are “the beneficiary of a pending or approved petition for classification under section 203(a) or (d).”

Section 568(d) also made more amendments to INA §204(l)(2) that cover widows and children of other non-Citizens such as derivatives of employment-based visas (INA § 204(l)(2)(C), refugees (INA § 204(l)(2)(D)), T and U Visa holders (INA § 204(l)(2)(E)), and asylees (INA § 204(l)(2)(F).

Written by Robert Myers, Los Angeles Immigration Attorney, and principal at My Advocate Group. If you want to take advantage of this new law or need other immigration assistance, contact a Los Angeles Immigration Attorney.

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