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Can Widows Who Remarry Still Qualify Under 204l of the Immigration Law?

On Behalf of | Dec 1, 2015 | Policy Memos |

USCIS just released a new policy memorandum that may be of interest and help to surviving relatives of US Citizens. PM 602-0126 is entitled “Approval of a Spousal Immediate Relative Visa Petition under Section 204(l) of the Immigration and Nationality Act after the death of a U.S. Citizen Petitioner.” The memo is highly technical and intended for USCIS employees, but the main thrust of it is to nationally implement the holding of Williams v. DHS Secretary, 741 F. 3d 1228 (11th Cir. 2014), a court case out of the 11th circuit, and clarify the boundaries of 204(l).

What is 204(l)?

Section 204(l) is a special section of the Immigration and Nationality Act (“INA”) that permits USCIS to approve or reinstate the approval of an immigrant visa petition despite the death of the petitioner. 204(l) is not to be confused with Humanitarian Reinstatement, which is similar but subject to different criteria. Generally speaking, 204(l) is the more liberal of the two but specifically requires, among other things, a showing that at the time of the petitioner’s death, the beneficiary was residing in the US, and continues to do so.

How Does Remarriage Affect a Beneficiary’s Eligibility under 204(l)?

The memo specifically revises the Adjudicator’s Field Manual to incorporate the holding of the Williams case, which although binding only in the 11th circuit, will now be applied nationwide. The guidance particularly affects widows and widowers of US citizens. Immigration officers are now to adhere to the following procedures when encountering the following scenario:

If a U.S. citizen filed I-130 for his or her spouse before the U.S. citizen died and the surviving spouse:

  • Has not remarried, the automatic conversion provision in 8 CFR 204.2(i)(l)(iv) applies and the Form I-130 is deemed to be a Form I-360. The surviving spouse can seek to immigrate as a “widow(er)” under INA 201(b)(2)(A)(i); or
  • Has remarried, the automatic conversion provision in 8 CFR 204.2(i)(l)(iv) no longer applies, and Form I-130, which was automatically converted to a Form I-130, reverts back to a Form I-130. The surviving spouse can, instead, seek relief under 204(l) if the surviving spouse was residing and still resides in the United States when the petitioner died.

The memorandum discusses the several potential advantages of filing as a widow(er), including the potential ability of the widow(er)’s children to accompany or “follow to join” the principal beneficiary notwithstanding the fact that a petition may not have been filed for them by the deceased petitioner. However, if the widow(er) remarried prior to attaining lawful permanent resident status, he or she would normally be deemed ineligible to adjust as a widow(er). Prior to the Williams case and this policy guidance, that would normally leave the individual without much options. Now, under the newly revised guidelines, USCIS may still consider a request by the widow(er) to adjust under Section 204(l) despite the remarriage and loss of automatic conversion (to an I-360).

USCIS does remind adjudicators that this guidance applies only to the widow(er) of a U.S. citizen (and any eligible child or children). Furthermore, notwithstanding the preservation of an individual’s eligibility to seek relief under 204(l), approvals are not automatic. The applicant must still demonstrate that a favorable exercise of discretion is warranted.

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