A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Sunday, December 6, 2015

Marraige Petition May Continue After Death of Citizen Spouse and Remarriage

Surviving spouses of U.S. citizens who have remarried may continue their adjustment of status (green card) applications, according to a new policy memo issued by the USCIS. 

When a foreign national marries a U.S. citizen, the foreign spouse may apply for lawful permanent status (or green card) as an "immediate relative". The second sentence of the statue defining "immediate relative" addresses the situation when the citizen spouse dies before the foreign spouse obtains her green card.  In order for the widow to continue being classified as immediate relative, the marriage must have lasted at least two years before the death of the citizen spouse and widow must remain unmarried. INA 201(b)(2)(A)(i).  Under the previous interpretation of the law by the USCIS, a surviving spouse's eligibility to apply for a green card ends if the surviving spouse remarries.

In 2010 Congress passed INA 204(l) to allow surviving spouses of U.S. citizens to continue their marriage petitions in spite of the fact that the underlying marriage was shorter than two years. Subsequently, USCIS started to approve surviving spouses petitions even if the marriage lasted less than two years before the citizen spouse passed away. However, USCIS would still enforce the remarriage bar and deny petitions filed by applicants who had remarried.

In 2014, the U.S. Court of Appeals for the Eleventh Circuit held that this USCIS interpretation of the law is incorrect. The 11th Circuit decided that widows in the above situation who have remarried may still continue their original I-130 petition under INA 204(l). Williams v. DHS Secretary, 741 F.3d 1228 (11th Cir. 2014).   In so deciding, the Court held that remarriage bar contained in the second sentence of INA 201(b)(2)(A)(i) only applies to self-petitions by widows. 

In a recent policy memo dated November 18, 2015, USCIS confirmed that the agency has decided to follow the decision in Williams nationwide  Accordingly, if the surviving spouse of a U.S. citizen has remarried and therefore no longer qualifies as an immediate relative under the second sentence in INA 201(b)(2)(A)(i), the widow may still apply for adjustment of status under INA 204(l).  

Specifically, the memo states that "USCIS would still have discretion to approve the Form I-130 (or to reinstate a prior approval) under INA 204(l), notwithstanding the widow's remarriage."  It should be noted that immigration officers now have the authority to approve the original Form I-130s but they are not required to do so.

The memo also emphasizes that under this interpretation, the two advantages associated with the Form I-360 self petition filed by a surviving spouse will no longer be available.  First, unless the U.S. citizen spouse had filed petitions for the widow spouse’s child(ren), the child(ren) cannot “accompany or follow to join” the widow parent.   Second, the widow will have to submit an Affidavit of Support Form I-864 from a substitute sponsor, unless specifically exempt by regulation.

Finally, this new policy under Williams only applies to surviving spouses of U.S. citizens ad their eligible children.   It does not cover petitions filed by lawful permanent residents. 

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