Introduction

On October 28, 2009, the President signed the FY2010 DHS Appropriations Act into law, allowing eligible widows or widowers of U.S. citizens to qualify for permanent resident status regardless of how long the couple was married. The new law amends the Immigration and Nationality Act (INA) by removing the two-year marriage requirement previously necessary for a widow(er) to qualify for permanent resident status as an immediate relative of his or her late U.S. citizen spouse. Additionally, when a widow(er) qualifies as an immediate relative under the law, his or her unmarried minor children will also qualify for the same status. The law applies equally to widow(er)s living abroad, who are seeking immigrant visas and widow(er)s in the United States, who want to become permanent residents based on their marriage.

These provisions of the FY2010 DHS Appropriations Act relate only to the impact of the citizen's death on a widow(er)'s eligibility for classification as an immediate relative. All other requirements for approval of a visa petition remain in force. Specifically, the widow(er) must still establish that:

• He or she was the citizen's legal spouse.
• The marriage was bona fide and not an arrangement solely to confer immigration benefits to the beneficiary.
• He or she has not remarried.
• He or she is admissible as an immigrant.

In an adjustment of status case, that he or she meets all other adjustment eligibility requirements and merits a favorable exercise of discretion.

Pending Form I-130, Petition for Alien Relative

As of October 28, 2009, any pending Form I-130 that was filed on a widow(er)'s behalf prior to the citizen spouse's death will automatically convert to a widow(er)'s Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, so long as, on the date of the citizen spouse's death, they qualified as an immediate relative under the INA and the FY2010 DHS Appropriations Act. Additionally, any Form I-130 that has been the subject of litigation in any Federal court on the issue of the effect of the petitioner's death is reopened for a new decision as of December 2, 2009, the date of issuance of the USCIS implementing directive. USCIS will identify those cases that are the subject of litigation that was pending on October 28, 2009. Once a case is identified, USCIS will notify the widow(er) in writing that their Form I-130 has been reopened and adjudicated as a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. Eligibility for classification as an immediate relative ceases if the widow(er) remarries.

Petition Approved Before Death

If the Form I-130 was approved before U.S. citizen petitioner's death, it will automatically convert to an approved I-360. Unmarried minor children of the widow(er) will also be eligible to seek an immigrant visa or adjustment of status based on the approved Form I-360.

Pending Form I-485, Application to Register Permanent Residence or Adjust Status

Additionally, if USCIS has jurisdiction to act on a Form I-485, Application to Register Permanent Residence or Adjust Status, that is the subject of litigation on this issue in any Federal court, USCIS will notify applicants in writing that their Form I-485 has been reopened. If the widow(er) entered the United States as a K-1 nonimmigrant and filed an I-485 after marrying the deceased U.S. citizen, he or she will be deemed the beneficiary of a Form I-360 Widow(er) petition. If a widow(er) with an approved Form I-130 and a pending Form I-485 left the United States voluntarily after his or her petitioning U.S. citizen spouse died, and thus "abandoned" his or her adjustment application, the approved Form I-130 is converted to an approved Form I-360, so that the widow(er) may apply for an immigrant visa abroad.

Widow(er)s Without Pending Cases

Widow(er)s of citizens who died before October 28, 2009, but who did not have a Form I-130 pending on October 28, 2009, have until October 28, 2011, to file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for themselves and their unmarried minor children. A widow(er) whose citizen spouse died on or after October 28, 2009, will have two years from the date of the citizen spouse's death to file their Form I-360.

Children of Widow(er)s

The child of a widow(er) whose Form I-360 is approved may be included in the widow(er)'s petition as long as they meet the definition for "child" under the INA. Where the deceased citizen filed a Form I-130 for his or her spouse that was pending at the time of his or her death, and the Form I-130 can now be adjudicated as a Form I-360 widow(er)'s petition, the child(ren) of the widow(er) will be included in the Form I-360.

An individual qualifies as the "child" of a widow(er) depending on their age when the visa petition was filed. For those cases that were pending on October 28, 2009, the Form I-360 filing date is the date on which the deceased citizen filed the prior Form I-130. If a widow(er) has an unmarried son or daughter who was under 21 when the deceased citizen filed the Form I-130, that individual will still be considered under 21 for purposes of the widow(er)'s Form I-360.