On June 9, 2009, U.S. Department of Homeland Security (“DHS”) Secretary Janet Napolitano granted interim relief in the form of “deferred action” for a period of two (2) years to widows and widowers of U.S. citizens—as well as their unmarried children under 18 years old—who reside in the United States and who were married for less than two (2) years prior to their spouse’s death. Deferred action is generally an act of prosecutorial discretion that works to suspend removal proceedings against a particular individual or group of individuals for a specific timeframe. It does not, however, resolve an individual’s underlying immigration status.
In connection with this grant of deferred action, Secretary Napolitano has also directed U.S. Citizenship and Immigration Services (“USCIS”) to suspend the adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for reassessment of one’s immigration status was the death of their U.S. citizen spouse prior to the second anniversary of their marriage.
U.S. Immigration and Customs Enforcement (“ICE”) has also been instructed to defer initiating or continuing removal proceedings, or executing final orders of removal against qualified widow(er)s and their eligible children.
The foregoing directives apply regardless of whether the U.S. citizen filed a petition for the alien spouse before death.
While this directive provides short-term relief for widow(er)s of deceased U.S. citizens, Congress will need to amend the definition of “immediate relatives” in the Immigration and Nationality Act to permit surviving spouses to remain indefinitely after a U.S. citizen spouse dies, enabling them to seek permanent resident status under the law.
Of note, individuals granted deferred action may apply for work authorization provided they can demonstrate economic necessity.