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Deferred Action Authorized by USCIS for Certain Surviving Spouses and Children of U.S. Citizens

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U.S. Citizenship and Immigration Services (USCIS)  has recently issued guidance on the subject matter of deferred action for surviving spouses of U.S.  Citizens who died before the second anniversary of their marriage. Deferred action is a temporary discretionary relief to remedy the “widow penalty” situation and an exercise of prosecutorial discretion not to pursue removal from the United States of a particular foreigner for a specific  period. It should be noted that the deferred action program does not cover surviving spouses or qualifying children of deceased U.S. citizens who are residing outside the United States or surviving spouses and children of a lawful permanent resident or other non-U.S. citizen. Also, this program also does not cover surviving spouses or qualifying children of deceased U.S. citizens if the surviving spouse remarried at any time after the U.S. citizen’s death.

The “widow penalty” prevents widow(er) of deceased U.S.Citizens, who were married less than two years at the time of theirs U.S. Citizen spouse’s death, from becoming permanent residents.  Deferred action helps temporarily remedy the widow penalty but it should be noted that the grant of deferred action by USCIS does not confer or alter any immigration status. The grant of deferred action does not convey or imply any waivers of inadmissibility that may exist, regardless of whether or not that inadmissibility is known to Department of Homeland Security (DHS) at the time of the request for deferred action. Likewise, deferred action cannot be used to establish eligibility for any immigration benefit that requires maintenance of lawful status.

Surviving spouses (and their qualifying children), whose U.S. citizen spouses died before the second anniversary of marriage, who have not remarried since the death of the spouse, and are currently residing in the United States. Such surviving spouses are covered without restrictions on how long the U.S. citizen spouse has been deceased as long as the surviving spouse has not remarried. Also a “qualifying child” can be listed on your form I-360 for deferred action. A “qualifying child” is is the unmarried son or daughter of the surviving spouse, who is currently residing in the United States. Generally, a “qualifying child” must be younger than age 21 at the time the request for deferred action is made.

If you were legally married for less than two years to a now deceased U.S. citizen, at the time of the U.S. citizen’s death, you may submit a completed Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with the appropriate filing fee ($375) to the Vermont Service Center, if a Form I-130 was not filed on your behalf. You must check box “m. Other, explain:” in Part 2 of the petition and cite the basis for eligibility as “Deferred Action — Surviving spouse of a deceased U.S. citizen, married less than two years.”

You Are Not Eligible for Deferred Action if you are the:

  • Surviving spouse of a deceased U.S. citizen, or qualifying child who is residing outside the United States;
  • Surviving spouse or child of a lawful permanent resident alien or other non-U.S. citizen;
  • Surviving spouse of a deceased U.S. citizen or qualifying child if the surviving spouse remarried at any time after the U.S. citizen’s death (regardless of whether or not the subsequent marriage has been terminated);
  • Surviving spouse who was legally separated or divorced from his or her U.S. citizen spouse at the time of the citizen’s death (or the surviving spouse’s child);
  • U.S. born child of either the surviving spouse or the deceased U.S. citizen spouse or such beneficiary’s children; or
  • Deceased U.S. spouse’s child who previously derived U.S. citizenship.

For more information see http://www.uscis.gov

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Written by MithrasLaw

September 4, 2009 at 2:56 pm

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