Relief for Widows and Orphans

A bill has been introduced in the Senate to allow orphans, parents and spouses of U.S. citizens to continue their family-based immigration applications despite the death of their sponsoring relative.

Under the current law, the surviving spouse is eligible to obtain a green card only if the couple had been married for at least two years.

In the past, the United States Citizenship and Immigration Services (USCIS) had taken the position that if the American spouse died before the second anniversary of their marriage, the spouse could no longer obtain his/her green card based on the marriage and he/she could be deported.

The bill introduced last June by Senators Robert Menendez, Kirsten Gillibrand and Patrick Leahy is known as the Orphans, Widows and Widowers Protection Act (S.1427.)

It will allow the spouses and unmarried children of family-sponsored immigrants and derivative beneficiaries of employment-based visas to benefit from a filed visa petition after the death of the sponsoring relative if the application is filed within two years.

It will also allow the spouse and minor unmarried children of refugees and asylees to immigrate to the U.S. despite the death of the principal applicant and allow them to adjust their status.

Cases that have been previously denied may be reopened to allow the foreign applicant to be paroled into the U.S. when the sponsoring relative died after submitting a family-based petition.

The bill will also allow the surviving spouse to continue his/her naturalization as long as the deceased spouse was a U.S. citizen during the three (3) years prior to filing.

Senator Gillibrand said that “this legislation is an important part of our efforts to reform America’s family-based immigration system to reunite loved ones, promote family stability and foster economic growth that immigrant families have provided throughout history.”

The introduction of the bill followed an announcement by Janet Napolitano, Secretary of the Department of Homeland Security, to grant “deferred action to the widows or widowers of U.S. citizens who otherwise would have been denied the right to remain in the U.S.”

This would allow these individuals and their children to stay in the U.S. pending resolution of their legal status. This directive is applicable whether the citizen relatives submitted a visa petition on behalf of his/her spouse and children before his/her death.

Deferred action means suspended deportation proceedings against a particular individual. It allows the individual to apply for work authorization.

Secretary Napolitano in her announcement said that the deferred action is only a short-tem arrangement and that a legislation would be required to amend our immigration laws. Such amendment she said should allow surviving spouses to remain indefinitely after the U.S. citizen spouse dies to enable him/her to obtain permanent resident status.