Since 1938, US immigration regulations have provided for the automatic revocation of the approved visa petition upon the death of the Petitioner. However, immigration regulations since 2006 provided that automatic revocation provisions does not apply to a spousal immediate relative petition if the deceased petitioner and the alien widower had been married at least two years at the time petitioner died.
When the FY2010 DHS Appropriations Act was enacted on October 28, 2009, the 2 year requirement was eliminated. Under section 568(c) of that act, it is no longer necessary for the husband and wife to have been married for 2 years when the citizen spouse died in order for the alien spouse to qualify as an immediate relative. The widow may remain an immediate relative as long as the widow was not legally separated from the citizen spouse at the time of death and the widow spouse files a petition within 2 years after the death of the citizen spouse or until the widow spouse remarries whichever comes earlier. Each child of the alien will also be considered an immediate relative under this section.
Widows with Pending Petitions
Section 568(c) amendment is applicable to all pending petition on or after the date of the enactment. Pending includes denied I-130 that have pending motions to reopen or pending BIA appeal, and BIA denials pending federal court litigation. The amendment also applies to any form I-485 that was pending on October 28, 2009.
Widows with Approved Petitions
Any approved I-130 before the citizen petitioner death will be deemed an approved I-360. The widower may adjust along with any child.
Widows without Pending Petitions
Widows may file I-360 self petition. For citizen spouses that died prior to October 28, 2009, the deadline to file the I-360 is October 28, 2011. For citizen spouses that died on or after October 28, 2009, the deadline to file the self petition is within 2 years of the citizen’s death. Affidavit of Support is not required for widows of a citizen and accompanying children.
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Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected]; Website kenreyeslaw.com.
