New USCIS Program Helps Foreign National Spouses of Deceased U.S. Citizens

Immigration lawyer Stewart Rabinowitz of the Dallas-based law firm Rabinowitz & Rabinowitz touts a new USCIS program that helps foreign widowed spouses.

U.S. Attorney General Janet Napolitano announced a new policy to assist widowed citizen immigrants to remain in the United States, despite the loss of their citizen partner.

“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,” says immigration lawyer Stewart Rabinowitz of the Dallas-based law firm Rabinowitz & Rabinowitz. Such persons 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 remarried. For widowed foreign national spouses whose marriages were not yet two years old at the time of the citizen spouses’ death, USCIS takes the position that a petition based on that marriage and a corresponding adjustment application must be denied. “This circumstance has been labeled the widow penalty,” Rabinowitz adds.

To alleviate the dual impact that currently exists, the new policy permits a widowed foreign national spouse to file for “deferred action status.” Deferred Action 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 younger than 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.

The widow penalty issues have been the subject of ongoing litigation. Several U.S. Courts of Appeal decisions have interpreted the underlying federal statute far differently than USCIS. For widowed foreign national spouses residing in the 1st, 6th or 9th Circuits, under the law of those circuits, such persons remain 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.

To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.