Asian Journal- The Filipino-American Community Newspaper

IT IS well-known that marriage to a US citizen, if bona fide, provides a clear path to permanent residency in most cases. But what happens when a US citizen spouse dies prior to the approval of an application for permanent residency? Does the surviving spouse have options? Fortunately they do and under a new policy recently released from US Citizenship and Immigration Services, these options have expanded providing a larger pool of applicants with an opportunity to legalize their status.

 If an immigrant marries a US citizen and has been married for more than two years and has not remarried and was not legally separated at the time the citizen (petitioner) passed away he or she may still save their residency. This Widow exception is accomplished by filing a self petition for permanent residency using Form I-360, as long as the petition is filed within 2 years of the passing. However, prior to this recent memo, if you had the same scenario as above but were married for LESS than two years the petition from the US citizen spouse would be automatically revoked and the only way to save it was a process known as a request for Humanitarian Reinstatement.

This asking for mercy from the Immigration Service predictably falls on deaf ears. Though requiring two years of marriage to qualify seemed to be an arbitrary rule it has remained in effect long enough to negatively impact thousands who had the pain of losing a loved one compounded by the loss of the ability to live in their new home. Pain because they simply were not married long enough by this arbitrary rule.

Thankfully, that madness has now changed.

In a policy memorandum issued July 15, 2009 to immigration personnel the USCIS announced that the new guidelines would cover the following individuals: 1. A surviving spouse of a US citizen who died before second wedding anniversary; 2. who has not remarried; 3. and was not legally separated; 4. While living in the US at time of death. Such surviving spouses are covered without restrictions on how long the US citizen spouse has been deceased. Included in this group are intending immigrants who have been previously denied.

The memorandum speaks to some distinct and specific situations and how officers should handle them, if you fit into one of these scenarios seek an immigration professional for help.