DHS Announces New Relief for Widows of US Citizens
June 11, 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 requesting 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 not 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, US Department of Homeland Secretary Janet Napolitano announced on June 9, 2009, that individuals unable to self-petition are now eligible to obtain immigration benefits. A widow or widower whose US citizen spouse passed away before their 2 year wedding anniversary is now eligible to obtain deferred action for a period of 2 years.The widow or widower’s child under the age of 18 is also eligible to obtain deferred action for 2 years.An individual granted deferred action is also eligible to obtain a work permit upon the showing of economic necessity. The policy announcement by Secretary Napolitano also instructs the United States Citizenship and Immigration Service (CIS) to suspend processing of any relative petitions or adjustment of status applications where the US citizen spouse died prior to the 2 year anniversary if the sole reason for a denial would have been the death of the spouse. The announcement further instructs the CIS to favorably review requests for humanitarian reinstatement where the basis for revocation was the death of a US citizen spouse. Finally, the announcement instructs the US Immigration and Customs Enforcement (ICE) to suspend initiating removal proceedings against a widow or widower of a US citizen, as well as their children under 18 years old.ICE will also not continue currently pending removal proceedings for qualified widows, widowers and eligible children.Further, ICE will not execute final orders of removal, thereby allowing individuals in this situation to remain in the US under deferred action. Secretary Napolitano acknowledged in the announcement that the new relief now granted to widows and widowers of US citizens “…balances strong enforcement practices with common-sense, practical solutions to complicated issues.”The announcement is made in light of court decisions that had recently been issued granting individuals in the 6th and 9th Circuit Courts only the ability to obtain permanent residency despite the death of a US citizen spouse.The policy announced by Secretary Napolitano does not go to the full extent of the court cases, which provide permanent residency rather than the temporary relief of deferred action.However, it is an acknowledgment that the present immigration laws lead to unjust situations that must be altered to ensure that justice and fairness prevails.
Aquino & Aquino, A Professional Law Corporation, also handles family law, employment discrimination, unlawful termination, criminal defense, personal injury, wills, and living trusts.