Rachel Browning’s Legal Blog

        Yesterday U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano announced that the DHS would be granting deferred action for two 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 were married for less than two years prior to their spouse’s death.  Current immigration law provides no relief for those who had been married less than two years before the death of their U.S. citizen spouse.  Instead, under current law, widows and widowers of U.S. citizens can self-petition for permanent residency only if they were married at least two years, and they self-petition within two years of their spouse’s death.   

        “Smart immigration policy balances strong enforcement practices with common-sense, practical solutions to complicated issues,” said Secretary Napolitano. “Granting deferred action to the widows and widowers of U.S. citizens who otherwise would have been denied the right to remain in the United States allows these individuals and their children an opportunity to stay in the country that has become their home while their legal status is resolved.”

        Secretary Napolitano also directed U.S. Citizenship and Immigration Services (USCIS) to suspend adjudication of visa petitions and adjustment applications filed for widows/widowers where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse prior to the second anniversary of the marriage. Additionally, U.S. Immigration and Customs Enforcement (ICE) will not initiate removal proceedings or execute final orders of removal against qualified widows/widowers and their eligible children. 

        These initiatives will apply whether or not the deceased U.S. citizen had filed a petition for the alien spouse before death.  “Deferred action” is an act of prosecutorial discretion to suspend removal proceedings against certain individuals for a specific timeframe and for a specific purpose.  It does not, however, confer any lasting type of immigration “status” on those individuals.  Those granted deferred action may apply for work authorization if they can demonstrate economic necessity.  Thus, Secretary Napolitano’s directive only provides a temporary form of relief for widows and widowers of deceased U.S. citizens.  Permanent relief in the form of a new provisions and regulations will require legislation through an act of Congress; most likely an amendment to the definition of “immediate relatives” under the INA that allows surviving spouses to remain indefinitely after the U.S. citizen spouse dies to seek permanent resident status.

        Secretary Napolitano’s initiative provides another small step in reforming our immigration system, by focusing on an issue in which both the proponents and critics of “comprehensive reform” will likely find common ground.  Obviously more changes must be made to overhaul a broken system, but these reforms must come from Congress.  The Secretary’s decision signals that the Obama Administration is committed to bringing relief to immigrants in need using whatever legal avenues it can employ for the present time. 

        If you have questions about these provisions or about other immigration issues, please contact the Immigration Attorneys of Smith & Garg in Houston, Spring and The Woodlands, Texas and Long Beach, California.<span style=”mso-spacerun: yes;”>  We can assist you in achieving the relief and benefits you seek.