Remarried Spouses of Deceased U.S. Citizen Petitioners Now Eligible Under Form I-130

 

USCIS has issued Policy Memorandum PM-602-0126 that allows for remarried spouses of deceased U.S. citizen petitioners to remain as beneficiaries despite the untimely death of their petitioning-spouse. USCIS adopted this nationwide after the holding in Williams vs. DHS Secretary, 741 F.3d 1228 (11th Cir. 2014).

In 2009, a policy Amendment deemed it no longer necessary to have been married at least 2 years to qualify as a “widower” after the death of a U.S. citizen-spouse. However, this Amendment left a small sub-segment of that population ineligible: surviving spouses who remarried. Those beneficiaries were no longer considered “widowers,” as they now had a surviving spouse. Cases thereafter resulted in denials of their I-130 applications, an inability to be eligible under Form I-360, and a suggestion to file a new I-130 with their subsequent spouse. Understandably, this added years to the process.

However, the 11th Circuit—and now USCIS—reasons that the initial intent of the statute is to put a person in the same position they would be in but for the untimely death of the petitioner. Therein, the fact that the surviving spouse remarried does not invalidate the prior marriage nor the intent of the prior I-130. Cases will now be adjudicated according to the I-130 filed from that prior marriage. The new policy will be handled as stated in the Adjudicator’ss Field Manual (AFM):

USCIS officers will follow the Williams decision in all cases, including those arising outside the 11th circuit. USCIS officers will adjudicate widow(er) cases as follows:

If a U.S. Citizen filed a Form I-130 before the U.S. citizen died and the surviving spouse:
• Has not remarried, the automatic conversation provision in 8 CFR 204.2(i)(1)(iv) applies and Form I-130 is deemed to be a Form I-360. The surviving spouse can seek to immigrate as a “widow(er)” under INA 201(b)(2)(A)(i); or
• Has remarried, the automatic conversion provision in 8 CFR 204.2(i)(1)(iv) no longer applies, and Form I-130, which was automatically converted into a Form I-360, reverts back to an I-130. The surviving spouse can, instead, seek relief under INA 204(1) if the surviving spouse was residing and still resides in the United States when the petitioner died.

Please note, as indicated in AFM 10.21(c)(3), a pending petition may still be denied on the merits if it would have been denied if the petitioner had not passed.

For more information regarding the development and laws behind this, please see the following link:

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-1118_Approval_of_a_Spousal_Immediate_Relative_Visa_Petition.pdf