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 and their eligible children.   It does not cover petitions filed by lawful permanent residents. 

Delay in immediate relative I-130 processing

U.S. citizens who filed immigrant visa petitions on behalf of their family members may have noticed the current delays in the processing of these I-130 petitions.  It is now taking about eight to ten months to process these petitions, and the delay has caused problems for many immigrant families.  Before the backlog of cases is cleared, it is very important for applicants to understand their options and plan their cases carefully in order to alleviate the impact caused by the current delay.

U.S. Citizens' right to petition for close family members
One of the many benefits of being a U.S. citizen is the ability to petition for one's immediate relatives to immigrate to the United States.  Immediate relatives (IR) include one's parents, spouses and minor children. Under the current immigration policy, immediate relatives are exempt from the annual visa quota and can immigrate to the United States as soon as their petitions are approved by the U.S. government. Hence, the processing time of their cases has a direct impact on how soon they can immigrate to the United States.

Delays in immediate relative I-130 petitions
The first step of the immigration process is to file an immigrant visa petition (Form I-130).  The U.S. Citizenship and Immigration Services (USCIS), a branch of the Department of Homeland Security, is charged with the responsibility of adjudicating all immigrant visa petitions.  It has been the practice of the USCIS to process IR petitions expeditiously as they are not subject to the visa caps.  Consequently, the processing times of IR petitions have traditionally been shorter than those in other visa preference categories (such as those filed by permanent residents).  However, since early 2013, the processing of the IR petitions has slowed down significantly.  As of October 31, 2013, USCIS reports that it was only processing IR petitions filed in February 2013. The agency is aware of the issue and is taking measures to remedy the situation.  For example, the agency has been transferring cases between service centers to fully utilize the agency resources.

Know one's options and plan carefully
In light of the current processing delays, intending immigrants their petitioners should plan their cases carefully in order to avoid lengthy delay of their cases.  First of all, they should know their options.  For example, rather than filing an immigrant visa petition for a foreigner, a U.S. citizen may use a fiancee visa petition instead. Currently, the K-1 fiancee petitions (I-129F) are taking about five months to process, which is a lot faster than an I-130 petition.  In order to apply for a fiancee visa, the parties must not be married.  Couples who can delay their marriage should consider filing for the fiancee visa classification.

If a couple is already married and has a pending I-130 petition, they can file an K-3 visa petition to allow the foreign spouse to first come to the United States while waiting for the processing of the I-130 petition. As of October 31, 2013, the processing time of the K-3 (I-129F) petition is about five months.  However, it is not unusual for USCIS to adjudicate both the K-3 and I-130 petition simultaneously.  Hence, delays in I-130 processing could also slow down adjudication of the K-3 petition.

Upon approval of the I-130 petition, the case is forwarded to the National Visa Center (NVC) for further processing and preparation for the consular interview.  Nowadays, NVC requires substantial amount of documents and information from the parties.  To speed up the immigration process, the parties should plan a head start with NVC processing.  For instance, the parties should have their original or certified documents ready including birth certificates, marriage certificate, divorce judgments, etc.  The beneficiary can also obtain the police clearances in advance but should be mindful of their effective dates.  The petitioner should also have their financial documents ready early on, including their federal tax returns, employment verification documents, proof of assets, etc.

Conclusion
USCIS has announced that it intends to bring the processing time back down to five months - the agency's target processing time for immediate relative petitions.  Before this goal is achieved, it is important for immigrant families to carefully consider their options and plan their actions accordingly.  For cases with unusual delays or special circumstances, the parties may contact Congressional members and USCIS Obudsman for assistance.  As a last resort, the parties may also file a Writ of Mandamus with the federal court to request that their I-130 petition be adjudicated.