Neufeld Memo Provides Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children

SEP 4 2009
Memorandum
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TO: Fi el d Leadershi p
FROM: Av~-dNe~ e- y
~ Act i ng Associ at e Director, Offi ce o f Domest i c Operations
SUBJECT: Gui dance Regar di ng Surviving Spouses o f Deceased U.S. Citizens and their Chi l dr en
I . Pur pos e
Thi s amended memor andum provi des guidance to U.S. Citizenship and Immigration Services
(USCIS) field offices and service centers regardi ng the processi ng o f surviving spouses o f deceased
U.S. citizens and qual i fyi ng chi l dren o f the survi vi ng spouses. I t affords a new process b y whi ch
t hey ma y appl y for deferred action. This pol i cy gui dance will b e in effect until further not i ce and
ma y b e revised as needed. Thi s memor andum revises and replaces in its entirety the June 15, 2009
“Gui dance Regardi ng Survi vi ng Spouses o f Deceased U.S. Citizens and their Children”.
I I . Ba c k g r o u n d
Sect i on 205. 1(a)(3)(i)(C) o f t i t l e 8 o f the Code o f Federal Regulations (8 CFR) requires t hat the
approval o f Form 1-130, Petition f o r Alien Relative, b e automatically revoked upon the deat h o f t he
petitioner i f t h e beneficiaryl has not adjusted status in the United States o r be e n inspected and
admitted as an immigrant. I n s uch instances, t he benefi ci ary ma y request a reinstatement o f the
approval and USCIS, i n its discretion, may grant such a request for humani t ari an reasons. 8 CFR
205.1 (a)(3)(i)(C)(2).
However, no avenue o f i mmi grat i on r e l i e f exists for the surviving spouse o f a deceased U.S. citizen
i f t h e surviving spouse and t he U.S. citizen were married less than 2 years at the t i me o f the ci t i zen’ s
death and ( l ) the i mmi gr ant pet i t i on filed b y t he citizen o n b e h a l f o f the surviving spouse has not
be e n adjudicated b y USCIS at the t i me o f t he c i t i z e n’ s death, o r (2) no pet i t i on was filed b y the
I Depending on context, the term beneficiary in this guidance may include bot h actual and potential beneficiaries o f
Forms 1-130 filed o n their behalf.
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Guidance Regarding Surviving Spouses o f Deceased U.S. Citizens and their Children
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citizen before the ci t i zen’ s death. This issue has caused a split among the circuit courts o f appeal
and is also t he subject o f proposed legislation i n the U.S. Congress (e.g., bills S. 815 and H.R. 1870).
III. Policy Guidance
This policy guidance covers onl y (1) surviving spouses o f U.S. citizens who died before the second
anniversary o f the marriage, who have not remarried and were not legally separated or divorced from
the citizen spouse at the time o f the ci t i zen’ s death, and who are residing i n the United States,2 and
(2) such survi vi ng spouses’ qualifying children. For purposes o f this policy guidance, “qualifying
children” are any children o f t h e surviving spouse o f t h e deceased U.S. citizen who remain
unmarried and under 21 years o f age and are residing i n the United States (age determinations for
beneficiaries o f Forms 1-130 should be made as provided in section 201(f) o f the INA).
This guidance applies to the aforementioned applicants without regard to their manner o f entry into
the United States. Such surviving spouses are covered without restrictions on how long the U.S.
citizen spouse has been deceased as long as the surviving spouse has not remarried. 3
This guidance does not cover surviving spouses or qualifying children o f deceased US. citizens who
are residing outside the United States or surviving spouses and children o f a lawful permanent
resident or other n o n – US. citizen. This guidance also does not cover surviving spouses or qualifying
children o f deceased U.S. citizens i f the surviving spouse remarried at any time after the U.S.
ci t i zen’ s death (regardless o f whether the subsequent marriage has been terminated). This guidance
does not cover any beneficiary who was legally separated o r divorced from his or her U.S. citizen
spouse at the time o f t h e ci t i zen’ s death, or such benefi ci ary’ s children.
Since current section 201 (b)(2)(A)(i) o f t h e Immigration and Nationality Act (INA) treats covered
widow(er)s o f U.S. citizens and their children as immediate relatives based upon a self-petition, they
are not covered b y this guidance. They may file a Form 1-360, Petition f o r Amerasian, Widow(er),
o r Special Immigrant, in accordance with the instructions on the Form.
In order to address humanitarian concerns arising from cases involving surviving spouses o f US.
citizens, USCIS is instituting the following policy guidance, which is effective immediately and until
further notice.
2 Section III(A) o f this memorandum, however, regarding humanitarian reinstatement, shall apply to surviving spouses
outside the United States.
3 This guidance is applicable to a beneficiary who entered the United States on a K- I Nonimmigrant Visa and married a
U.S. citizen, including cases i n which the marriage was to a U.S. citizen other than the U.S. citizen petitioner who filed
the 1-129F. I f the U.S. citizen spouse died before the second anniversary o f the marriage, the widow(er) is eligible for
deferred action o r humanitarian reinstatement as described herein. Nothing in this memorandum, however, is intended to
provide o r imply eligibility for immigrant classification or adjustment o f status o f any person granted deferred action o r
humanitarian reinstatement, including widow(er) o f U.S. citizens other than U.S. citizens who filed the Form 1-129F who
are subject to section 245(d) o f the INA.
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I t is not necessary for the wi dow(ers) o f citizens to seek deferred action under the guidance i n this
memorandum, in a case governed b y First, Si xt h o r Ni nt h Circuit law. Court s in those j uri sdi ct i ons
have held t hat the vi s a pet i t i oner ‘ s death does not end a surviving s pous e ‘ s eligibility for
classification as an i mmedi at e relative. Taing v. Napolitano. 567 F.3d 19 ( l s t Cir. 2009); Lockhart
v. Napolitano. 561 F. 3d 611 (6th Cir. 2009); Freeman v. Gonzales. 444 F. 3d 1031 (9th Cir. 2006).
Litigation o n this i ssue is current l y pendi ng i n the Supreme Court. Robinson v. Napolitano, No. 09-
9 4 (Cert petition filed July 23, 2009). Until such t i me as the Supreme Cour t decides the Robinson
case o n the merits, however, t he Taing, Lockhart and Freeman cases r emai n t he law i n their
respect i ve circuits.
In t he First, Si xt h and Ni nt h Circuits, therefore, an officer should approve a For m 1-130, and shoul d
also treat a pre-approval deat h as still valid, i f t h e Form 1-130 is approvable, apart from the i ssue o f
t he pet i t i oner ‘ s death. No request for reinstatement o f a pre-death approval will b e necessary.
Shoul d the benefi ci ary i n a First, Sixth o r Ni nt h Circuit case br i ng to the attention o f USCIS a For m
1-130 that was denied o r revoked on o r after August 30, 2001, solely becaus e the petitioner had di ed
officers should consider t he Taing, Lockhart and Freeman decisions as a pr oper basis for reopening,
on USCIS motion, t he For m 1-130, as well as any related Form 1-485. 4 I t is not necessary for the
benefi ci ary to file a formal mot i on o r pa y a ny filing fee; any wri t t en request, such as a letter, will
suffice. For purposes o f this paragraph, a For m 1-130 will b e considered a First, Sixth o r Ni nt h
Ci rcui t case if:
• the For m 1-130 is pendi ng in, o r t he original decision was made by, a USCIS office i n t he
First, Si xt h o r Ni nt h Circuit; o r
• ei t her the pet i t i oner o r the benefi ci ary resided in First, Si xt h o r Ni nt h Circuit at the t i me
o f the pet i t i oner ‘ s death. 5
Whet her an alien is act ual l y admissible is not an issue in the adjudication o f a Form 1-130. Matter o f
0 – , 8 I&N Dec. 295 ( BI A 1959). In light o f the j udgment i n Hootkins v. Napolitano, _ F .Supp. 2 d
_ , 2 0 0 9 WL 2222839 (C.D.Cai. 2009), an offi cer will not consider the presence o r absence o f
Form 1-864 from a subst i t ut e sponsor i n deciding whether to approve o r d e n y a Form 1-130 in a First,
Sixth o r Ni nt h Ci rcui t case. Th e Hootkins court ruled, however, that t he Cl ass Plaintiffs had failed t o
pr ove their cl ai m that an alien widow(er) whose For m 1-130 is approved under Fr eeman does not
need a For m 1-864 from a subst i t ut e sponsor. 2009 WL 2222839 at *17, n. 23. The widow( er),
therefore, must submi t a ne w For m 1-864 to obt ai n approval o f t h e For m 1-485, unless the Form 1-
485 applicant is exempt from this requirement under 8 CFR 213a.2(a)(2)(ii). Thus, the officer will
treat the provi si on i n AFM 21.5( a)(4) ( 8) ( 2) t hat requires submission o f a ne w For m 1-864 from a
4 No action is necessary i f the Fo n n 1-130 was denied o r revoked before August 30, 2001. A civil action must generally
be brought against the United States within 6 years after the cause o f action accrues. 22 U.S.C. 2401(a). August 30,
2001, is selected as the cut – of f date for reopening First, Sixth and Ninth Circuit cases since that is 6 years before the
filing o f Hootkins v. Napolitano, _ F.Supp. 2d _ (C.D.Cal. 2009), which began as a putative nation-wide class
action.
5 The First Circuit includes Maine, Massachusetts, Ne w Hampshire, Rhode Island, and Puerto Rico; the Sixth Circuit
includes Kentucky, Michigan, Ohio, and Tennessee; and the Ninth Circuit includes Alaska, Arizona, California, Hawaii,
Idaho, Montana, Nevada, Oregon, Washington, and Guam. 28 U. S. c . § 41.
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substitute sponsor as applying only to the adjudication o f t h e Form 1-485, and not to the adjudication
o f the Form 1-130.
A widow(er) who is not able to submit a new Form 1-864 from a substitute sponsor may seek
deferred action, even i f t h e Form 1-130 i t sel f is approved. I n the case o f a widow(er) whose Form 1-
485 cannot be approved because o f t h e lack o f a new Form 1-864 from a substitute sponsor, a final
decision on the Form 1-485 will b e held i n abeyance during the period i n which a grant o f deferred
action is i n effect.
The Taing, Lockhart and Freeman cases apply only to First, Sixth and Ninth Circuit cases involving
Forms 1-130 filed for the spouses o f citizens. These cases do not apply to a Form 1-130 filed b y a
citizen for a step-child. Even i f the ci t i zen’ s widow(er) ma y have a Form 1-130 and Form 1-485
approved, therefore, any children o f t h e widow(er) who are also beneficiaries o f Forms 1-130 filed
b y the deceased citizen may seek deferred action under this guidance.
A. Fo r m 1-130 Ap p r o v e d Pr i o r to t he De a t h o f t h e U.S. Ci t i zen Spouse ( Pet i t i oner )
Upon the death o f t h e U.S. citizen petitioner, the approved Form 1-130 is automatically revoked
pursuant to 8 CFR 205.1 (a)(3)(i)(C). The beneficiary, however, ma y request reinstatement o f the
revoked petition pursuant to 8 CFR 205.1 (a)(3)(i)(C)(2). USCIS ma y then exercise discretion and
grant the reinstatement after considering the facts and humanitarian considerations o f the particular
case. I f the request for humanitarian reinstatement is approved, the beneficiary ma y proceed to the
adjustment o f status or consular processing stage.
This memorandum does not alter the process for reviewing a Form 1-130 returned to USCIS b y a
U.S. Consular Officer overseas when the beneficiary is seeking a humanitarian reinstatement. I f
USCIS reinstates the Form 1-130 returned b y the consular officer, the 1-130 should b e forwarded to
the National Vi sa Center to allow the beneficiary to resume consular processing. Section III(A) o f
this guidance, relating to humanitarian reinstatement, applies to beneficiaries who are within or
outside the United States.
I f a beneficiary covered b y this guidance requests humanitarian reinstatement, adjudicators should
presume that humanitarian reasons support a grant o f the request. Absent extraordinary factors o r a
failure to meet the regulatory requirements o f 8 CFR 205.1 (a)(3)(i)(C)(2), adjudicators should
favorably exercise discretion accordingly. I f the request for reinstatement cannot be granted for any
reason other than confirmed or suspected fraud o r issues o f criminality or national security, the
beneficiary should b e informed that h e or she ma y request deferred action i n the manner described i n
III(E) below.
B. Fo r m 1-130 Pe n d i n g a t t h e Ti me o f De a t h o f t he U.S. Ci t i zen Spouse ( Pet i t i oner ) – Ma r r i e d
Less t h a n 2 Ye a r s a t Ti me o f De a t h
Once USCIS has received a copy o f the U.S. citizen pet i t i oner’ s death certificate, the pending, stand- .
alone Form 1-130 should be held i n abeyance at the pending location. Petitions may be transferred to
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the Ver mont Servi ce Cent er to b e consolidated wi t h the A-file housi ng a deferred action request, i f
such a request is made b y the benefi ci ary (see further gui dance below).
An y concur r ent l y filed For m 1-485, Application to Register Permanent Residence or Adj ust Status,
and Form 1-130, shoul d b e held in abeyance at the National Benefits Cent er until further gui dance is
issued. Th e benef i ci ar y will remai n eligible to receive the interim benefits o f advance parol e and
empl oyment aut hori zat i on on the basi s o f the pendi ng adjustment o f status application.
I f a Form 1-485 was not concurrent l y filed, the benefi ci ary should b e i nformed that he o r she ma y
request deferred act i on i n t he manner descri bed i n section III (E) below.
Note: In i nst ances where t he benefi ci ary and deceased U.S. citizen petitioner were marri ed for at
l east two years at the t i me o f the pet i t i oner ‘ s death, the pendi ng For m 1-130 should b e handl ed u n d e r
exi st i ng procedures, i ncl udi ng conversi on o f the Form 1-130 to a Form 1-360 for special i mmi grant
classification as a wi dow/ wi dower to t he ext ent provi ded b y 8 CFR 204.2(i)(1 )(iv).
C. Fo r m 1-130 Deni ed ( Pr i o r t o t h e I s s ua nc e o f t hi s Gui da nc e ) d u e to t h e De a t h o f t he U.S.
Ci t i zen Spous e ( Pet i t i oner )
A benef i ci ar y wh o is t he surviving spouse o f a U.S. citizen petitioner and whose petition was deni ed
b y USCIS (1) d u e to the death o f t h e U.S. citizen petitioner, and (2) pr i or to the issuance o f t h i s
guidance, ma y r equest deferred action i n t he manner described in section III(E) below.
D. Fo r m 1-130 Not Fi l ed Pr i o r to t h e De a t h o f t h e U.S. Ci t i zen Spouse
A benef i ci ar y who was legally mar r i ed to a now deceased U.S. citizen at the time o f t he U.S.
c i t i z e n’ s death, b u t for whom no Form 1-130 was filed, ma y request deferred action i n the ma nne r
described i n sect i on III(E) below.
I f t he benef i ci ar y was not l egal l y marri ed to, o r was l egal l y separated from, the deceased U.S. ci t i zen
at t he t i me o f t he U.S. c i t i z e n’ s death, a qual i fyi ng relationship does not exist. The benefi ci ary is
therefore not el i gi bl e to submi t Form 1-360 based o n the specific pol i cy guidance set forth in sect i on
I11(E) below.
E. Re q u i r e d Doc ume nt a t i on f or Request s f o r De f e r r e d Act i on
Beneficiaries ma y request deferred action b y submi t t i ng t he following:
1) A For m 1-360, Petition f o r Amerasian, Widow(er), or Special Immigrant, with t he appropriate,
non-wai veabl e filing fee (currently $375), compl et ed in the format explained below; and
2) Al l o f t he document s requested in the Form 1-360 filing instructions for widow/widowers.
Th e benefi ci ary o f t he For m 1-360 must check box ” m. Ot h e r , e xpl a i n: ” in Part 2 o f t h e pet i t i on
and cite the basi s for eligibility as ” De f e r r e d Act i on — Sur vi vi ng spouse o f a deceased U.S.
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citizen, ma r r i e d less t h a n 2 year s . ” The Form 1-360 must be submitted to the Vennont Service
Center for deferred action consideration. Note that while USCIS is utilizing Form 1-360 for these
deferred action requests, such filings are NOT special immigrant self-petitions under current law.
They should b e adjudicated as requests for deferred action only. In addition to the Part 2
i nf onnat i on described above, the applicant must complete Parts 1 , 3 , 4 , 7, 9, 10 and 11 o f t h e Form
1-360.
F. Decision o n Request s f or De f e r r e d Act i on
Requests for deferred action based on the specific policy guidance set forth in this memorandum
ma y onl y b e considered for: 1) surviving spouses o f U.S. citizens whose U.S. citizen spouse died
before the second anniversary o f the marriage and who are unmarried and residing in the United
States; and 2) their qualifying children who are residing i n the United States.
The following persons are ineligible for deferred action: 1) beneficiaries whose immigrant visa
petition was denied o r revoked for any reason other than or i n addition to the death o f the petitioning
U.S. citizen spouse; 2) widow(er)s who have remarried or were legally separated or divorced from
the U.S. citizen spouse at the time o f the U.S. ci t i zen’ s death; and 3) beneficiaries with other serious
adverse factors, such as national security concerns, significant immigration fraud, commission o f
other crimes, or public safety reasons. A grant o f deferred action is a discretionary action on the
part o f USCIS. I t is intended that this discretion should b e liberally applied to provide a
humanitarian benefit to eligible beneficiaries. However, deferred action ma y b e denied for serious
adverse factors, whether or not such factors are specifically identified i n this guidance.
Requests for deferred action based on the specific policy guidance set forth i n this memorandum will
not b e considered for beneficiaries who: 1) are surviving spouses or qualifying children o f non-U.S.
citizens; 2) are residing outside the United States; 3) meet the conditional marriage period set forth
i n INA 201 (b)(2)(A)(i); or 4) have remarried subsequent to the U.S. ci t i zen’ s death (regardless o f
whether the subsequent marriage has been terminated).
Once a decision on the request for deferred action has been made, the decision must be
communicated to the beneficiary via a decision letter. I f the request has been granted, the deferred
action grant letter must state that the beneficiary is eligible to file Form 1-765, Application f o r
Empl oyment Authorization. I f the request has been denied, the deferred action denial letter must cite
the reasons for the denial. A decision on a request for deferred action falls within the discretion o f
the Secretary. A denial o f a request for deferred action is not subject to administrative appeal or
j udi ci al review. See INA § 242(a)(2)(B), and (g).
G. Val i di t y Pe r i o d f or De f e r r e d Action
For any deferred action request received on o r before Ma y 2 7 , 2 0 1 1 , the validity period o f deferred
action based on the policy guidance set forth in this memorandum is two (2) years from the date o f
grant o f the Form 1-360 request for deferred action.
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H. Eligibility for Employment Authorization
The appropriate classification for Form 1-765 filed on the basis o f a deferred action grant is (C)(14)
pursuant to 8 CFR 274a.12(c)(14). Beneficiaries ma y submit Form 1-765, with the appropriate filing
fee (currently $340), using this classification at any time after the grant (but prior to the expiration)
o f deferred action. However, they must demonstrate an economic necessity. The validity period for
an employment authorization document (EAD) under the classification (C)(14), based on the
specific pol i cy guidance set forth i n this memorandum is two (2) years, not to exceed the expiration
date o f the grant o f deferred action.
All requests for employment authorization based on the policy guidance set forth in this
memorandum must contain the appropriate required supporting documentation. Applicants must
follow currently established filing procedures for the Form 1-765 i n accordance with the instructions
on the form. Fee waiver o f t h e Form 1-765 fee is available on a case-by-case basis for substantiated
inability to p a y as provided in 8 CFR 103.7(c)(I).
A beneficiary whose Form 1-485 is being hel d i n abeyance ma y also file a Form 1-765, with the
appropriate filing fee. The appropriate classification for employment authorization filed on such a
basis is (C)(9) pursuant to 8 CFR 274a.12(c)(9). Evidence o f an economic necessity is not required
i f usi ng this classification. A beneficiary whose application is bei ng held i n abeyance ma y have
been issued an employment authorization document valid for one year under category (C)(9). When
such an applicant files a Form 1-765 for renewal o f his or her EAD under the classification (C)(9)
based o n the specific pol i cy guidance set forth i n this memorandum, the validity period will be t wo
(2) year s . An applicant with a valid EAD under the classification (C)(9) may file for renewal no
more than 90 days prior to the expiration date o f the valid document. The employment authorization
ma y then b e granted for two (2) years based on the specific policy guidance set forth in this
memorandum.
I. Effect o f Grant o f Deferred Action
The grant o f deferred action by USCIS does not confer or alter any immigration status. I t does not
c o n v e y o r i mpl y any waivers o f inadmissibility that may exist, regardless o f whether that
inadmissibility is known to DHS o r other agencies at the time o f the request for deferred action. A
grant o f deferred action also does not eliminate any period o f pri or unlawful presence. However,
periods o f time i n deferred action do not count as unlawful presence for the purposes o f sections
212(a)(9)(B) and (C) o f the INA. Any period o f time in deferred action qualifies as a period o f st ay
authorized b y the Secretary o f Homeland Security for those purposes.
As noted earlier i n this memorandum, in the case o f a widow( er) whose Form 1-485 cannot be
approved because o f the lack o f a new Form 1-864 from a substitute sponsor, a final decision on the
Form 1-485 will b e held i n abeyance during the period in which a grant o f deferred action is in effect.
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J . Eligibility for Advance Par ol e
Beneficiaries granted deferred action based on the policy guidance set forth in this memorandum o r
whose applications for adjustment o f status are bei ng held i n abeyance ma y request advance parole.
Such request ma y b e made b y filing Form 1-131, Appl i cat i onf or Travel Document, i n accordance
wi t h the Form 1-131 instructions and with the appropriate fee. Note, however, that departure from
the United States and return, even under a grant o f advance parole, ma y adversely affect eligibility
for adjustment o f status o f aliens with past periods o f unlawful presence.
K. I mpl ement at i on
USCIS offices and centers are to begi n implementing the instructions established in this
memorandum immediately.
L. Co n t a c t I n f o r ma t i o n
Questions regarding this memorandum should b e directed to the Office o f Domestic Operations
through appropriate channels.
Thi s memorandum is not intended to, and does not, create any right or benefit, substantive or
procedural, enforceable at law or i n equity, b y any party against the United States, its departments,
agencies o r entities, its officers, employees, or agents, or any other person.
Di st r i but i on:
Regional Directors
District Directors
Field Office Directors
National Benefits Center Director
Service Cent er Directors
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