Guidelines for Surviving Spouse of U.S. Citizen

The United States Citizenship and Immigration Services (USCIS) issued guidelines last August 31 on how widow(er)s of U.S. citizens who died before the second anniversary of their marriage can stay in the U.S. and work.

Previously, they were prevented from becoming permanent residents and in some cases were subject to removal from the U.S. This was referred to as the widow penalty.

The recent relief is known as deferred action. Under the program, the USCIS is temporarily suspending adjudication of visa petitions and adjustment applications filed for the widow(er)s. No adverse action will be taken against them during the duration of their deferred action status.

To qualify for this relief, the surviving spouse must not have been separated at the time of the death of the citizen spouse, has not remarried and is currently residing in the U.S. Her/his children may be included in the relief if they are under 21 when the deferred action is requested and are unmarried and currently residing in the U.S.

The request for deferred action is accomplished by filing Form I-360 and accompanied by a filing fee of $375 with the Vermont Service Center. It should be filed before May 27, 2011. It is valid for two years.

The applicant and his/her qualifying children may be granted employment and travel authorization while under deferred action status.

Deferred action may be granted if the Form I-130 petition for relative was never filed by the deceased spouse or if it was filed but was not approved. It may also be granted if the I-130 was filed but was denied due to the death of the spouse.

If the citizen spouse filed the petition concurrently with the adjustment application before his/her death, the surviving spouse will continue to be eligible for employment and travel.

If the I-130 was filed and was approved, the petition is automatically revoked upon the death of the petitioner but the surviving spouse may request humanitarian reinstatement. If the request for humanitarian reinstatement is granted, he/she may continue with the adjustment of status or consular processing of the green card. If it is denied, he/she may file for deferred action.

The grant of deferred action does not mean that he/she may apply for permanent residence or continue with his/her application. It means only that the widow(er) is temporarily authorized to remain in the U.S. and may apply for work and travel authorization.

However, if he/she is covered by the decisions of the U.S. Court of Appeals in the 1^st, 6th and 9th circuits which have held that such spouse should be considered as immediate relative and may therefore continue his/her green card application, deferred action is not necessary.

Widow(er)s who had been married for more than two years at the time of the death of the citizen spouse are not covered by the program since they already benefit under existing laws. They may self-petition as immediate relative as long as their Form I-360 is filed within two years after the date of death.

Widow(er)s who had been married for more than two years at the time of the death of the citizen spouse are not covered by the program since they already benefit under existing laws. They may self-petition as immediate relative as long as their Form I-360 is filed within two years after the date of death.

Widow(er)s who had been married for more than two years at the time of the death of the citizen spouse are not covered by the program since they already benefit under existing laws. They may self-petition as immediate relative as long as their Form I-360 is filed within two years after the date of death.