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Department of Homeland Security Eases Restrictions on Widows and Widowers of U.S. Citizens

A June 9, 2009 press release issued by the Department of Homeland Security reports that DHS Secretary Janet Napolitano has changed the rules by which widows and widowers of U.S. citizens may seek adjustment to their immigration status.

Secretary Napolitano’s rule changes will allow these individuals and their children (less than 18 years old) to take advantage of a policy known as “deferred action,” as long as said individuals have lived two years in the United States.

Per these new rules, the U.S. Citizenship and Immigration Services (USCIS) has been ordered to stop adjusting applications and visa petitions in the cases of widows and widowers whose spouses died prior to their second wedding anniversary. Secretary Napolitano’s orders also change the directives of the U.S. Immigration and Customs Enforcement Service (ICE), which now must defer initiating, proceeding with attempts to remove, or finalizing the removal of said widows/widowers and their children from the country. Widows/widowers whose petitions have been revoked may be granted a second chance to have their cases heard. In addition, the USCIS must consider humanitarian reinstatement for said individuals. Furthermore, even if a widowed spouse had not previously petitioned for citizenship, he or she will still qualify for deferred action protection under this DHS directive.

Deferred action is not a permanent solution to immigration status. It is merely a mechanism by which individuals or groups can bide time to apply for work authorization in the U.S. The DHS directive does not grant alien spouses of deceased U.S. citizens permanent resident status. For a change like that to take effect, Congress would have to revise the wording of the Immigration Nationality Act to allow spouses and qualified immediate relatives to remain indefinitely in the country.