Court Grants Relief to Surviving Spouses of US Citizens
May 13, 2009
The death of a spouse is a traumatic and agonizing experience. When the surviving spouse is seeking an immigrant visa based on the marriage, however, the death of the spouse can be even more traumatic. This is because generally an individual is no longer able to proceed on an immigrant visa petition when the petitioner has passed away, except through an onerous process that the visa petition be reinstated based on discretionary humanitarian grounds.
For a widow who has been married for at least 2 years before the spouse’s death, the situation is that too problematic as individuals in this situation can file a self-petition for an immigrant visa. For those whose spouse passes away before their 2 year wedding anniversary, however, the death is a significant problem because they are unable to self-petition. Understanding the injustice of this “widow penalty” to those ineligible to self-petition, the courts are now starting to expand the eligibility for surviving spouses to continue with an immigrant visa petition. The courts are now acknowledging that ridding the immigration laws of the widow penalty will rightfully promote justice, fairness and family unity.
On April 28, 2009, the California District Court issued a final order expanding the eligibility of surviving spouses to obtain immigrant visas. In Hootkins v. Napolitano, CV07-05696, the Court ruled that an individual who resides in the Ninth or Sixth Circuit continues to be entitled to an immigrant visa as an “immediate relative” based on being a surviving spouse of a US citizen. In other words, the Court ruled that a widow is still a spouse, even after the death of the US citizen, and may therefore still be granted lawful permanent residency to the US because of the marriage.
Based on this interpretation of the law, the Court ruled that a surviving spouse is therefore not required to file a request for humanitarian reinstatement of the I-130 Petition for Alien Relative. Rather, a surviving spouse continues to be an immediate relative and is not subject to the additional requirements needed to have an I-130 Petition reinstated based on humanitarian reasons.
Furthermore, the Court ruled that the immigration service’s policy requiring an individual to have already filed an I-485 Application for Adjustment of Status prior to the spouse’s death is not required in order to be eligible for benefits. This therefore expands eligibility to those who had not already filed an I-485 Adjustment Application, as well as those who are still waiting abroad in a foreign country.
The Court’s decision is presently limited only to those who reside in the Ninth and Sixth Circuits. The Ninth Circuit is comprised of California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Hawaii, Alaska, Guam, and the Northern Mariana Islands. The Sixth Circuit is comprised of Michigan, Ohio, Kentucky, and Tennessee.
Surviving spouses in these Circuits who have previously been denied may accordingly be eligible to have their applications reopened and readjudicated. Individuals in these Circuits who did not pursue the adjustment of status or consular processing due to the death of a spouse may also now proceed with the application process.
The recognition by the Court of the patent unfairness experienced by widows seeking permanent residency to the US is long overdue. The trauma of losing a spouse may no longer be used by the immigration service in the Ninth and Sixth Circuits to perpetuate even further harm to a surviving spouse. It is hoped that the victory experienced in the Ninth and Sixth Circuits will soon be extended to the rest of the nation. In the meantime, those eligible for benefits as a surviving spouse must seek competent legal counsel knowledgeable in these emerging issues to ensure that justice prevails.
Aquino & Aquino, A Professional Law Corporation, also handles family law, employment discrimination, unlawful termination, criminal defense, personal injury, wills, and living trusts.
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