Williams Case Offers new Relief for Widows and Orphans

INA 204(l) gives USCIS discretion to approve, or reinstate the approval of, an immigrant visa petition despite the petitioner’s death if the beneficiary resides in the United States when the petitioner dies and continues to reside here. This discretion also extends to cases in which the principal beneficiary dies, and in other cases specified in INA 204(l). 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, dated December 21, 2010, amended the AFM to implement INA 204(l). One provision, AFM 10.21(b), provided that INA PM-602-0126: 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 204(l) did not apply to a Form I-130, Petition for Alien Relative, filed by a U.S. citizen for the U.S. citizen’s spouse. The basis for this conclusion was that a separate amendment to INA 201(b)(2)(A)(i) applied to the case of a spousal immediate relative petition.  Under that amendment, it is no longer necessary for the U.S. citizen spouse and the foreign national spouse to have been married for at least 2 years in order for the foreign national spouse to qualify as a “widow(er)” after the death of the U.S. citizen spouse. Under Title 8, Code of Federal Regulations (8 CFR) § 204.2(i)(1)(iv), a Form I-130 in this case is automatically converted to a widow(er)’s Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. However, the particular fact scenario presented in Williams alters the guidelines. In Williams petitioner died while the I-130, Petition for Alien Relative was pending and the marriage was less than 2 years. Beneficiary remarried and filed under I-360, Petition for Widow, which USCIS ultimately denied due to her second marriage.

The court ultimately held that: If a U.S. citizen filed a Form I-130 for his or her spouse before the U.S. citizen died and the surviving spouse:  has not remarried, the automatic conversion provision in 8 CFR 204.2(i)(1)(iv) applies and the Form I-130 is deemed to be a Form I-360. The surviving spouse can seek to immigrate as a “widow(er)” under INA 201(b)(2)(A)(i); or has remarried, the automatic conversion provision in 8 CFR 204.2(i)(1)(iv) no longer applies, and Form I-130, which was automatically converted to a Form I-360, reverts back to a Form I-130. The surviving spouse can, instead, seek relief under INA 204(l) if the surviving spouse was residing and still resides in the United States when the petitioner died.  It does not matter whether USCIS had approved the Form I-130 before the U.S. citizen died. As noted in AFM 10.21(c)(3), a pending petition may still be denied on the merits, if it would have been subject to denial if the petitioner had not died.