‘Widows Law’: Legal Change Ensures Immigration Rights

New court ruling means widows and widowers remain legal if their spouse dies during status adjustment or petition process

First Circuit Court of Appeals Ruling

Justice was finally served and a big battle has been won after the First Circuit Court of Appeals ruling in Nean Chea Taing v Janeth Napolitano, a decision handed down on May 20, 2009. There is hope for thousands of widows and widowers who have been deprived of their immigration right to preserve their status as an immediate relative after the death of a United States spouse, while the petition for alien relative‘ and adjustment of status‘ application is pending.

The Issue:

The First Circuit Court of Appeals was confronted with the issue of whether an alien immigrant spouse of a still pending application for alien Relative and Adjustment of Status to that of a permanent resident continues despite the death of their U.S. citizen spouse. Until today, there has been a dispute as to the viability of retaining the classification of immediate relative status for purposes of obtaining an immigrant visa (legal permanent resident status) in the event that the petitioner, the U.S. Citizen, died during the period of time the application is still pending with the USCIS. It has been the USCIS position that the petitioner must survive the application process and that his/her death during that time terminates the right of the beneficiary to be classified as an immediate relative, and therefore, ineligible to change his/her status to that of a permanent resident.

Court’s Task and Ruling:

The court’s first task was to determine whether the reference “Spouses” as stated in the first sentence of the statutory provision in question includes “surviving spouses” of a United States Citizen. Next, the Court proceeded to narrow the class of aliens allowed to continue being considered “immediate relatives” for purposes of adjusting their status to that of a permanent resident after the death of the petitioner’s US citizen spouse. The court determined that in order for an alien to continue to be considered an immediate relative after the death of his/her US citizen spouse, the deceased US citizen petitioner must have filed an I-130 petition for alien relative previous to his death. The fact that the petitioner dies shortly after the petition was filed is irrelevant. If the US citizen petitioner dies before filing a petition for an alien relative, the surviving beneficiary spouse must have been married to the deceased American citizen for a period not less than 2 years and must file a self-petition (I-130) no later than 2 years after the death of his/her deceased US citizen spouse.

It is expected that the other circuits will join in this ruling.


Eliana Phelps

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