On June 15, 2009, USCIS issued policy guidance to provide deferred action or humanitarian reinstatements for the following beneficiaries based on marriage to a deceased U.S. citizen:
- Surviving spouses of deceased U.S. citizens who died before the second marriage anniversary, provided the surviving spouse has not remarried, remains in the United States, and was not legally separated from the citizen spouse at the time of death; and
- Children of the surviving spouse who are unmarried and under 21 years of age. Prior regulations stipulated that the approved Form I-130 of the deceased U.S. citizen be revoked upon death. Under new guidance, the surviving beneficiaries may request reinstatement of the revoked petition pursuant to 8 CFR 205.1(a)(3)(i)(C)(2). Provided there are no extraordinary factors and the beneficiary meets regulatory requirements, adjudicators should exercise discretion favorably in the request of humanitarian reinstatement. If the request for reinstatement cannot be granted, the beneficiary may request deferred action.
If a Form I-130 was pending at the time of the U.S. citizen petitioner's death, USCIS will hold the I- 130 petition in abeyance at the pending location. If there is a pending I-485 application for the surviving beneficiary, USCIS will hold the I-130 petition and I-485 application in abeyance at the National Benefits Center and the surviving beneficiary will remain eligible for advance parole and employment authorization.
If a Form I-130 was not filed on behalf of the surviving non-U.S. citizen spouse, the surviving spouse may request deferred action.
Filing for Deferred Action
The eligible surviving beneficiary may file Form I-360, with supporting documentation as indicated on the form instructions, with the Vermont Service Center. Deferred action will be granted liberally by USCIS as a humanitarian benefit to be valid for two years. Deferred action will not confer/alter immigration status, convey/imply waivers of inadmissibility, or eliminate prior periods of unlawful presence (although time in deferred action does not qualify as unlawful presence).
Employment authorization is available for beneficiaries granted deferred action. Beneficiaries must complete Form I-765 and supply all supporting documentation. Beneficiaries must also demonstrate economic necessity if no Form I-485 is pending for the beneficiary.
Advance parole is also available for beneficiaries granted deferred action. Beneficiaries must complete Form I-131 and supply all supporting documentation. Beneficiaries must note that leaving the United States, even with an advance parole document, may have an adverse effect on eligibility to adjust to permanent resident status if a prior period of unlawful presence exists