On November 30, 2015, The United States Citizenship and Immigration Services (USCIS) has issued an important Policy Memorandum [PDF version],1 In effect, USCIS changed its policies such that it will now be possible for an alien surviving spouse who had an immediate relative petition filed on his or her behalf to become a permanent resident based upon that original petition after remarrying. Under the previous policies, remarriage before obtaining permanent residency based upon the original petition would bar the surviving spouse from becoming a permanent resident based upon the petition filed by his or her deceased spouse. In this post, I will explain the reasons for the previous policy, why USCIS has changed its policy, and what this change means going forward.
In 2009, the provisions that are now found in section 204(l) [PDF version] of the Immigration and Nationality Act (INA) came into force. Among other things, section 204(l) provides that if the U.S. citizen petitioner dies after filing an immediate relative petition, the petition will be adjudicated notwithstanding the death of the petitioner unless the approval of the petition is determined to not be in the public interest. 204(l) also allows USCIS to reopen petitions that were denied due to provisions replaced by the new statutes.
The USCIS issued a Policy Memorandum on December 16, 2010, that took the position that section 204(l) of the INA did not apply in the case of a Form I-130 filed by a U.S. citizen on behalf of his or her alien spouse [PDF version].2 The reason that the USCIS took this now-abandoned positio was based upon its own regulations implementing a different statutory provision. First, USCIS noted that section 201(b)(2)(A)(i) of the INA applied explicitly to spousal immediate relative petitions after the death of the petitioning spouse. Section 201(b)(2)(A)(i) [PDF version] states that an immediate relative spouse shall be considered to remain an immediate relative after the date of the U.S. citizen spouse provided that he or she files a Form I-360 widow(er)'s petition within 2 years of the death and does not remarry. In addition, the requirement that the marriage be at least 2 years old does not apply in cases covered by the current section 201(b)(2)(A)(i).
In order to implement section 201(b)(2)(A)(i), Department of Homeland Security (DHS) regulations in 8 C.F.R. 204.2(i)(1)(iv) [PDF version] automatically convert a Form I-130 petition upon the death of the U.S. citizen petitioner to a Form I-360 widow(er)'s petition. USCIS determined that because the Form I-130 is automatically converted upon the death of the U.S. citizen spouse, there is no longer a Form I-130 that section 204(l) could apply to in the cause of a surviving spouse. In effect, this reading of the two statutes made it impossible for a surviving spouse to remarry and still become a permanent resident based upon a petition filed by his or her deceased petitioning spouse.3
In 2014, an important case titled Williams v. DHS Secretary [PDF version] reached the Eleventh Circuit.4 Williams brought a direct challenge to USCIS's policy that 204(l) does not apply to spousal petitions. The case concerned a woman whose husband had died after filing a Form I-130 on her behalf in 2002. The immediate relative petition was denied under the old laws on account of her husband's death, and her Form I-360 petition was denied because her marriage had not been for 2 years (this is no longer a requirement for Form I-360 petitions).
The applicant briefly remarried in 2009 (before the new laws came into effect), thus rendering her ineligible for benefits under section 201(b)(2)(A)(i). After section 204(l) was enacted, she applied to have her original Form I-130 reopened. The subsequent litigation, ending ultimately in the Eleventh Circuit, concerned whether USCIS was correct in not applying section 204(l) to surviving spouses.
Ultimately, the Eleventh Circuit sided with the applicant and held that USCIS's interpretation of the statute was incorrect. The Eleventh Circuit held this because section 204(l) is unambiguous in that it applies to all immediate relative petitions. In light of that, the Eleventh Circuit held that USCIS could not use the regulatory automatic conversion provision in 8 C.F.R 204.2(i)(1)(iv), which was based upon implementing a different statute [201(b)(2)(A)(i)], to limit the scope of section 204(l).
After finding that section 204(l) does apply to spousal petitions, the Eleventh Circuit held that a subsequent marriage neither invalidates the original petition nor the original marriage. Thus, the applicant in this case was found to be eligible to have her original Form I-130 reopened and adjudicated.
Although Williams is only binding precedent for all courts in the Eleventh Circuit, USCIS has decided to apply the Williams decision nationwide. In doing so, it updated chapter 10.21 of the Adjudicator's Field Manual (AFM) and added an amendment to chapter 21.2(h)(1)(C).5
For surviving spouses who do not remarry, the rules are unchanged by this new policy guidance. An unmarried surviving spouse may take advantage of the automatic conversion provision found in 8 C.F.R. 204(i)(1)(iv) which allows for the Form I-130 to be treated as a Form I-360. The surviving spouse may then seek to immigrant as a “widow(er)” under section 201(b)(2)(A)(i) of the INA.
The new rule is for surviving spouses who do remarry. The automatic conversion provision in 8 C.F.R. 204(i)(1)(iv) activates upon the death of the U.S. citizen spouse. However, if the surviving spouse remarries, the Form I-360 will be converted back to a Form I-130. The surviving spouse may then seek to have the original Form I-130 adjudicated under section 204(l) provided that he or she resides in the United States and resided in the United States when the petitioner died.
In both cases, it does not matter whether the Form I-130 was approved before the petitioner died. However, the petition may still be denied on the merits under either section 201(b)(2)(A)(i) or section 204(l) [for example, the surviving spouse will have to demonstrate that the previous marriage was bona fide].
When courts find that agency regulations and policies are in conflict with the laws enacted by Congress, the regulations and policies must give way. The Eleventh Circuit in Williams found just that, ruling that USCIS had interpreted its own regulations to improperly limit a law enacted by the Congress. The Eleventh Circuit found that 204(l) clearly applied to all immediate relatives, and therefore could not be read to not include surviving spouses on account of how the regulations were written to implement a separate statutory provision.
USCIS's decision to extend the rules that derive from Williams nationwide will have a real-world effect on many surviving spouses. Prior to this policy change, a surviving spouse would not be able to remarry until his or her Form I-360 was adjudicated under section 201(b)(2)(A)(i). Under the new rules, if the surviving spouse does remarry, his or her Form I-360 will be automatically converted back to a Form I-130 and may be adjudicated under section 204(l).
It is important to remember that the policy change does not guarantee permanent residency to anyone. The only rule that is changed is that the remarriage of a surviving spouse before he or she obtains permanent residency based upon a Form I-360 will not render him or her unable to obtain permanent residency under section 204(l). Even under section 204(l), USCIS may still deny the petition on discretionary grounds.
Regardless of whether a surviving spouse is applying for permanent residency with a Form I-360 after automatic conversion, or has remarried and is using section 204(l), he or she should consult with an experienced immigration attorney to ensure that all of the proper steps are taken to obtain permanent residency.
- Policy Memo, USCIS, Approval of a Spousal Immediate Relative Visa Petition under Section 204(l) of the Immigration and Nationality Act after the Death of a U.S. Citizen Petitioner, PM-602-0126 (Nov. 30, 2015)
- The old PM is: Policy Memo, USCIS, Approval of Petitions and Applications after the Death of the Qualifying Relative Under New Section 204(l) of the Immigration and Nationality Act, PM 602-0017 (Dec. 16, 2010), Published on AILA InfoNet at Doc. No. 11011061 (Jan. 10, 2011)
- This much was stated explicitly in the old AFM 10.21(b): “A widow(er)'s eligibility for adjustment ends if the widow(er) remarries before obtaining LPR status.”
- Williams v. DHS Secretary, 741 F.3d 1228 (11th Cir. 2014)
- AFM Update AD-10-51 [PDF version]