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Davis Brown Immigration Law Blog

Some Good News - Congress Expands Rights of Survivors - January 12, 2010

In all the frustration we experience every day with the immigration system, it is nice to report a positive development.  The Department of Homeland Security Appropriations Act for FY2010 included a provision expanding the rights of immigrating survivors when the petitioner or principal alien dies during the immigration process.

The immigration law has long provided survivor benefits for widows and widowers of U.S. citizen sponsors if they had been married two years or more before the sponsor's death.  However, many egregious injustices resulted from this arbitrary two-year cut off.

In the last year or so, courts in several jurisdictions held that this "widow penalty" was unenforceable, making what should have been a consistent rule different depending on the State in which the widow(er) lived.

Congress finally fixed the problem, and surprisingly fixed some other problems at the same time, including providing survivor benefits under employment-based applications in some instances.

Here's how it works:

For widow(er)s who have been married two years at the time of the U.S. citizen spouse's death: The rule does not change.  As before, the surviving spouse must file a self-petition (I-360) within two years of the death (although as discussed below, a pending I-130 filed by the spouse who is now deceased may be automatically converted).

  • For widow(er)s who have been married less than two years at the time of the U.S. citizen spouse's death:  They now may file the I-360 self-petition to immigrate based on the marriage within two years of the spouse's death.  However, if the spouse died before enactment of this law (October 28, 2009) this petition may be filed within two years of enactment of the law (or by October 27, 2011).  This gives the spouse more time to file, but it is a deadline that must be kept in mind.
  • For those with an I-130 petition for immigrant relative pending before the spouse's death:  That petition can be considered automatically converted to an I-360.  However, the widow(er)s must be aware of the law's deadlines and not rely on automatic conversion. No substitute Affidavit of Support is required under this part of the law.  However, the widow(er) must prove to USCIS that he/she (and any accompanying children) is not likely to become a public charge. The I-360 may be filed concurrently with an application for Adjustment of Status (Form I-485) if the widow(er) is physically present in the United States or the widow(er) may consular process if he/she is residing abroad.
  • For widow(er)s who have remarried: They are prevented from self-petitioning under this part of the law (§568(c)), but the other part of the law (§568(d)) may allow them to apply if an I-130 petition was filed before the spouse's death and a qualifying substitute Affidavit of Support sponsor can be found.
  • For children of the widow(er):  Unmarried children under 21 may be included on the I-360 filed by the parent.  Children over 21 may be included in certain situations if they qualify under the Child Status Protection Act (if another petition - usually an I-130 - was filed before the child turned 21 and certain other conditions exist).  Children may not self-petition.
  • For "immediate relatives" of a deceased U.S. citizen: The second part of the law (§568(d)) allows spouses, parents, and minor children of deceased U.S. citizens who had filed an I-130 on behalf of their relatives to have the petitions adjudicated (including related I-485 applications) "notwithstanding the death" of the U.S. citizen if they resided in the United States at the date of death and continue to reside here.  Note that residence is not always the same as physical presence, but is usually defined as "domicile".  This is an expansion of the law that is an unexpected benefit.
  • For family preference relatives: This same section also provides survivor benefits to "preference" system relatives, including unmarried sons and daughters (over 21) of U.S. citizens, married sons and daughters of U.S. citizens, spouses or children of U.S. permanent residents, unmarried sons and daughters of U.S. permanent residents, and brothers and sisters of U.S. citizens.  Again, they must reside in the United States at the date of death and continue to reside here.
  • For employment-based dependents: They are also covered if the principal applicant (spouse or parent) dies before the employment-based immigration process is completed.  Again, they must reside in the United States at the date of death and continue to reside here.
  • For refugee/asylee relative petition beneficiaries and asylees: They are also covered on the same basis if the principal (sponsoring relative who was granted refugee status or asylum) dies.
  • For "T" and "U" visa applicants: They are also covered on the same basis. A substitute Affidavit of Support is required under §568(d) from a qualifying sponsor, who must be related in certain ways or be a legal guardian of the beneficiary.
  • For those with other "related applications": Section 568(d) covers the "petition" (I-130 or I-140) and application for adjustment of status (I-485) "and any related applications" to be "adjudicated notwithstanding the death of the qualifying relative".  This may mean that waivers of inadmissibility (I-212 or I-601) are included and should be adjudicated despite the qualifying relative's death.  However, USCIS is given discretion to deny any case in any situation that would not be in the public interest.
  • For those with relatives who died before the law was enacted: The law does not prevent retroactive application.  We are hopeful that it will be considered to apply to all deaths before the date of enactment if the other requirements are met.

This law is great news for many people who not only suffered the loss of a loved one but also the loss of their ability to immigrate. Thank you, Congress and all who worked tirelessly to pass this law.