In an effort to fashion a remedy for certain widowed foreign national spouses who were not married to U.S. citizens for 2 years at the time that the U.S. citizen died, U.S. Attorney General Janet Napolitano announced a new policy to assist such persons to remain in the United States, despite the loss of their citizen partner.
As background, currently if a foreign national marries a United States citizen and the citizen partner dies, the widowed foreign national spouse can still remain eligible to gain permanent resident status, provided he or she was the spouse of a United States citizen for at least 2 years at the time of the citizen’s death, and was not legally separated from the citizen at the time the citizen spouse died. Such a person must file with USCIS within 2 years after the citizen spouse’s death to remain eligible to gain an immigration benefit from the marriage, provided the widowed foreign national spouse has not re-married. For a widowed foreign national spouse whose marriage was not yet two years old at the time of the citizen spouse’s death, USCIS takes the position that a petition based on that marriage and a corresponding adjustment application must be denied. This circumstance as been labeled the “widow penalty.”
To alleviate the dual impact of the death of the U.S. citizen spouse, and imminent loss of legal status in the U.S. for this group of widowed foreign national spouses, the new policy permits a widowed foreign national spouse to file for “deferred action status.” Deferred Action status is a form of prosecutorial discretion whereby the Department of Homeland Security agrees not to remove the widowed foreign national spouse for a 2 year period, and permits the widowed foreign national spouse and unmarried children under 21 and currently residing in the United States to also remain here. Foreign national spouses granted deferred action status can also apply for employment authorization and travel permission.
To benefit from deferred action status, the widowed foreign national spouse must have been married to but not legally separated or divorced from the U.S. citizen spouse, must not have not subsequently married anyone else, and must be currently living in the U.S.
The widow penalty issue has been the subject of ongoing litigation and several U.S. Courts of Appeal have interpreted the underling federal statute far differently than USCIS. For a widowed foreign national spouse residing in the 1st or 6th or 9th Circuits, under the law of those circuits, such a person remains eligible to gain permanent residence based on marriage to the deceased U.S. citizen, despite the death of the citizen spouse within 2 years of marriage.
Deferred action status is an interim, administrative remedy. Only a legislative change can provide long term relief for this group of widowed foreign national spouses.
*Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C., a Dallas based immigration law Firm (https://www.rabinowitzrabinowitz.com). He is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.