Widows can get visas despite death of petitioners

THE GENERAL rule that the “petition dies with the petitioner” is subject to certain exceptions.

One way to avoid the automatic revocation is to file a humanitarian revalidation. The other is the conversion of the spouse petition to a widow petition despite the death of the US citizen spouse.

What happens in cases where the surviving spouse remarries after the death of the petitioner?

Michelle married Douglas, a US citizen in 2003. Douglas filed a spouse petition in 2004 but unfortunately died before his petition was approved.

Michelle was not able to file a widow’s self-petition because back in 2004, the marriage should have been in existence for two years before a widow petition is allowed.

In 2007, Michelle married her second husband Noel but this marriage ended in a divorce. In 2010, Michelle filed a widow’s self-petition because immigration law changed by then, now allowing marriages of less than two years to file for self-petition.

This widow’s petition was denied because Michelle married her second husband Noel after the death of Douglas. Is this second-marriage bar an absolute rule for widow petitions?

If Michelle did not marry the second time, will she be able to get the immigrant visa based on her first marriage to Douglas?

Widow petitions

Certain widows and widowers may be able to obtain permanent residence after their US citizen spouse passes away. The following requirements must be met:

Self-petitioner was married to a US citizen;

The deceased spouse was a US citizen at the time of his or her death;

The spouses were not legally separated at the time of the death;

They file a US Citizenship and Immigration Services (USCIS) form I-360 within two years of the death; and

They are not inadmissible.

A 2009 law eliminated the prior requirement that the couple should have been married for at least two years.

Widows or widowers whose US citizen spouse died before the new law went into effect on Oct. 28, 2009, had two years from that date to seek relief.

The US Immigration law provision on self-petitioning widow or widower clearly provides a bar to receiving immigrant visa if there was a remarriage after the death of the original US citizen spouse.

Effect of remarriages

This is the case of Michelle who can no longer avail of a petition filed on behalf of her first husband.

But if Michelle was already residing in the United States at the time of the death of her first husband, the case will be different.

There is a very recent exception for widows who have remarried and are currently residing in the United States. The
USCIS released in November 2015 a policy memorandum where the widow who remarried may still avail of the first petition by the US citizen spouse under Section 204(l) of the Immigration and Nationality Act.

The main requirement is that the beneficiary must have been residing in the United States at the time of the petitioner’s death and continuing to be residing in the United States.

The other requirement is a substitute sponsor who can file an affidavit of support on her behalf.

(The author may be reached at [email protected], facebook.com /tancincolaw, www. tancinco.com or (02) 7211963 Manila, or
1-888-930-0808, United States.)