December 23, 2009 - Based on a review of the new policy guidance and the USCIS Fact Sheet with Q&A, it appears that the legal conclusion of whether your I-130 or I-129F was "pending" on October 28, 2009 will determine whether you can reopen your case or whether you will be required to submit a new I-360. Essentially, October 28, 2009 is the relevant date. If on that date your I-130 was still pending it will be converted. If it was denied before that date, but was on appeal in some fashion (whether federal court or administratively) it will also be pending. Because the Class Action (Hootkins v. Napolitano) was pending on that date, ALL CLASS MEMBERS who can point to a Ninth Circuit tie (either case filed/decided there, or either spouse resided there at time of death) can be considered "pending" on that date. If you don't have a Ninth Circuit connection that would make you a class member, your case was denied before October 28, 2009, and there was no pending appeal or other challenge, then USCIS has said your case was not "pending" on that date and will require a re-filing of an I-360. If an I-360 was filed for deferred action, that will be enough and will be considered as an I-360 filing. The result of this policy will be a large number of re-filings.
December 15, 2009 - USCIS Fact Sheet with Q&A
December 14, 2009 - USCIS has issued OFFICIAL GUIDANCE today, dated December 2, 2009, outlining in detail the effect of Section 568(c) of the new act dealing with surviving spouses of U.S. citizens and their children. This is the first publicly available USCIS guidance following the passage of the new law, and it directs USCIS agencies to begin implementing the provisions immediately. The guidance has somewhat complex rules with regard to how previously filed I-130 petitions can be converted to I-360 petitions if they were denied before the law went into effect October 28, 2009. Even though this is confusing, the option remains to file an I-360 anew prior to the deadline of October 28, 2011.
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USCIS Official Guidance Surviving Spouses |
| This information is of a general nature and cannot be substituted for advice of competent counsel in an individual case.
December 3, 2009 - Article - NEW LAW EXPANDS IMMIGRANT RIGHTS OF SURVIVORS, by Brent Renison.
December 2, 2009 - Following the passage of the LEGISLATION, approvals have begun to issue. While no formal guidance on the new law has yet been issued to the public, it is suggested that surviving spouses consider the following:
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Sample Letter Requesting Reopening |
| I-360 Recently Approved Even When Filed as Deferred Action
Surviving spouses who filed Deferred Action (DA) requests before the law passed are now receiving notices granting immigrant classification as the widow(er) of a U.S. citizen. This is considered an I-360 approval, and an adjustment of status application may be filed. The I-485 filing chart indicates that if the person is applying based on an already approved I-360 petition, the I-485 adjustment application should go to either Nebraska Service Center (NSC) or Texas Service Center (TSC), depending on the applicant's state of residence. If the applicant already has a previously filed I-130 or I-129F with I-485 application as described immediately below, then that process may be considered. Otherwise, in the case of a person with no prior I-485 application, the new I-485 based on the I-360 approval may be filed with either NSC or TSC. This, of course, is subject to change when USCIS comes out with instructions.
I-130 or I-129F filed together with I-485 Adjustment Application and in U.S. pursuant to lawful admission
If you have a pending or denied I-130/I-485 combination (or I-129F with I-485 filing) you should be able to have the case reopened and adjudicated under the new law. Specifically, USCIS on its own motion can reopen a Form I-130 for a new decision in light of FY2010 DHS Appropriations Act, Pub. L. 111-83, §568(c), 123 Stat. 2142, 2186-87 (2009). Under 8 C.F.R. 204.2(i)(1)(iv), the Form I-130 is converted to, and may be adjudicated as, a widow(er)’s Form I-360. Once the I-360 is approved, the pending or denied I-485 Application for Adjustment of Status can also be approved. A sample request is provided here. It will be useful to include with the request a copy of any denial, and any related receipt notices received for the case. PLEASE NOTE THAT NEW GUIDANCE HAS BEEN ISSUED DEFINING WHO MAY REOPEN AN OLD CASE.
I-130 or I-129F filed but no I-485 filed, and in U.S. pursuant to lawful admission
In this case, you can still request reopening and readjudication of the I-130 or I-129F as converted to an I-360. One might file a request with the local USCIS office for conversion, and following approval file an adjustment of status. Where that would be filed is somewhat unknown. In this case, it may be easier to simply file a concurrent I-360 and I-485 together at the Chicago address listed on the I-360 chart as explained directly below. PLEASE NOTE THAT NEW GUIDANCE HAS BEEN ISSUED DEFINING WHO MAY REOPEN AN OLD CASE
No I-130 or I-129F ever filed but surviving spouse in U.S. pursuant to lawful admission
In this case, a new I-360 and I-485 adjustment of status application is to be considered, because there is no prior petition to be auto-converted. There is a two-year deadline by which the I-360 must be filed, and that is October 28, 2011. The combined I-360 and I-485 may be filed with the Chicago Lock Box address listed on the I-360 form, together with an I-765 application for Employment Authorization Document, G-325A, and I-864W Form. At this time, at least one report of rejection has been received. Following this incident, the agency has informally advised us to mark the box on the I-360 form for "Other" (until the I-360 form can be revised) and write in "Insists on filing – eligible as a widow under PL 111-83."
I-130 filed but surviving spouse abroad
In this case, the surviving spouse is abroad and cannot file an adjustment of status application, but the I-130 was previously filed and is either pending or was denied. It is difficult to say which would be more effective - trying to have the old I-130 approved as an I-360 or re-filing a new one with Vermont Service Center. Certainly, re-filing has its advantages since a receipt notice from VSC would be issued and would be able to be tracked. One might try both avenues - filing an I-360 with VSC, and also asking the agency that has the I-130 to adjudicate as an auto-converted I-360. As more people apply, we may have more guidance on this. In the end, after the I-360 (or converted I-130) is approved, it will be sent to National Visa Center and then on to the Embassy for an immigrant visa to be issued, allowing the person entry as a lawful permanent resident. PLEASE NOTE THAT NEW GUIDANCE HAS BEEN ISSUED DEFINING WHO MAY REOPEN AN OLD CASE.
I-130 never filed and surviving spouse abroad
In this situation, an I-360 must be filed within the two year window expiring October 28, 2011. Instructions call for filing the I-360 with the Embassy abroad, although many Embassies simply instruct the applicant to apply directly with Vermont Service Center. The filing of the I-360 is the first step in getting the immigration process started, and should be considered as soon as possible.
General Filing Tips
When requesting benefits under the new law, whether asking for reopening or filing anew, there are a few things to keep in mind. First, it is important that you consult a competent immigration attorney. If you cannot afford one, please contact one of the local non-profit immigration legal services offices in your area. Second, you will need to prove that you and your spouse were free to marry, and provide copies of all prior divorce decrees or death certificates. Third, you may be asked to verify that you have not remarried since your spouse passed away. If you have remarried, read the FAQ in the LEGISLATION tab, since another section of the new law may apply to you. Finally, if you are not in the U.S. pursuant to a lawful entry (you entered without inspection), you must consult with an attorney very familiar with the new law as the new Section 204(l) may provide relief.
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October 28, 2009 - Congress abolished the widow penalty through legislation. The information below is retained for historical purposes only, because the new law enacted upon President Obama's signature allows widows and widowers and their children to self petition for lawful permanent resident status. Please refer to the LEGISLATION tab for more information.
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Understanding the Issue - What is was the Widow Penalty?
Every year, a handful of surviving spouses and family members are deported because their U.S. citizen relative dies.
What is the widow penalty? In order to understand, it helps to learn about the process of becoming a Lawful Permanent Resident through marriage to a United States citizen. When a U.S. citizen marries a non-citizen, he or she may file a petition for that person to receive "immediate relative" status and be processed for Lawful Permanent Resident (LPR) status. LPR status is commonly referred to as the "Green Card." The non-citizen spouse may either apply for an immigrant visa abroad at a U.S. consulate, or if already in the United States, may apply for "adjustment of status" and be processed without leaving the country. One common misconception is that spouses of U.S. citizens are applying for citizenship - a non-citizen who gains LPR status through a spouse must reside in the United States as a resident for three years before applying for citizenship.
The immigration process often takes many months to complete. The married couple files the paperwork, then waits for the government to process. During bureaucratic processing, the non-citizen spouse may receive work authorization and travel permission. If an applicant is given resident status prior to the second wedding anniversary, the LPR status is called "conditional" and referred to as "Conditional Permanent Resident (CPR) status. CPR status is virtually the same as LPR status, with the condition that the couple file a simple form after two years attesting to the continuing validity of the marriage to remove the condition. In addition to showing the CPR is residing together in marital union with the citizen spouse, the CPR has the option of proving that the marriage was terminated through divorce but was entered into in good faith, or show abuse, or that the citizen spouse has died. This is the case even if the marriage never reached the two year mark.
With respect to the "widow penalty," the government takes the view that if the death occurs before the bureaucracy acts on the couple's applications (CPR status), even if the marriage is one day short of the two year wedding anniversary, the application can be denied because the applicant is no longer a "spouse." Yet, in a case that sees quick adjudication to CPR status, the government allows the CPR to file to remove the condition despite the death, even if the marriage only lasted (for example) three months! The members of Surviving Spouses Against Deportation believe that the term spouse encompasses a surviving spouse. The only Circuit Court to review this issue has agreed, as have three other federal District Courts.
The follow news account of Carla Freeman's case helps bring the widow penalty to "life" -
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Parting's Bitter Sorrow After a Husband Dies,
Citizenship Efforts Falter and Departure Looms
The Oregonian
Monday, November 29, 2004
JOSEPH ROSE
CLARKSTON, Wash. On a hill above the Snake River, the scars of Carla Arabella Freeman's American journey are carved into salmon-colored granite.
The gravestone belongs to Robert Glen Freeman, her late husband. "Li'l Bob," it reads. "Lived, loved, laughed." Born: November 1974. Died: February 2002. It doesn't say anything about the struggle that followed.
Saturday morning, the 27-year-old widow knelt on the dry yellow leaves blanketing the grave, sobbing as Robert's round, friendly face smiled back from a photo embedded above his name.
The wind picked up, and the pine trees bent and sighed. A tiny U.S. flag sticking out of a flower pot began to dance. Carla Freeman shivered.
"I'm leaving," she said, with a heavy South African accent. "But I will be back."
She couldn't promise when the next whispered conversation on the hillside will happen. It could be at least a decade before the U.S. government allows the West Linn woman to visit her husband's grave again.
On Wednesday, Freeman, whose fight against deportation by U.S. immigration officials has gained international attention, will return to Nelspruit, South Africa, to be with her aging parents. Both, she said, have been seriously ill.
It's tough. And unfair, she said.
She fell in love with a man, his family and his country. She complied with all the rules on the road to citizenship, starting with marrying Robert in 2001. But then her husband died in a car wreck, and she was ordered to leave.
Before they shackled and handcuffed Freeman in May, immigration officers explained that her husband's sudden death made her ineligible to be a citizen. They hadn't been married for two years, as federal law requires.
Freeman's attorney, Brent Renison, won her conditional release as he prepared to take the case before the 9th U.S. Circuit Court of Appeals in January. One of the conditions: If she left the country on her own, she would be banned for 10 years. No entry, not even for a short visit.
By leaving, Freeman is effectively deporting herself, Renison said, adding that the case has disgraced the U.S. government.
"I think we have a responsibility to Robert to take care of his widow. If she wants to live in the country where they made his home, she should be allowed."
Freeman, a petite redhead with striking blue eyes, entered the country legally, carrying an Italian passport because her father is from Italy.
There was a time when she wasn't interested in visiting America. She didn't like what she saw of U.S. tourists and businesspeople walking into the South African hotel where she once worked.
Giant egos and an even bigger sense of entitlement, like they ruled the world, she said.
Then came a job offer. In 1999, she agreed to work as an au pair for a family in Chicago. She would go to give the United States another chance. A two-year "experience" and back home, she told herself.
It was in Chicago that she met Robert Freeman, a guy as American as the Washington State Cougars football team he cheered every fall and the Costco where he worked five days a week.
He came to embody America for her: optimistic, playful, hardworking, devoted to his family.
Different paths
They met in a karaoke bar. "Fortunately, he wasn't singing," she said, giggling. "He told me about where he grew up and a lot about his family. He was also really interested in where I came from."
He was the youngest of three children raised by a single mom who worked in a Clarkston bullet factory. In high school, he wrestled and was known as a jokester. After graduation, he started working at the local Costco, selling tires. Eventually, he was promoted to a management job in Chicago.
She was the daughter of a retired army chef. Her mother was English. They lived near one of Africa's largest wildlife reserves, where elephants and zebras roam. Dad was a Sicilian but not as strict as most, she assured Robert.
After several months of dating, Robert traveled to South Africa and asked Carla's father for permission to marry her. The couple married in Chicago and moved to Indiana, where Robert had been sent to manage a new Costco.
He had started teaching her how to drive. He came home every day to eat lunch with her. She said he was often tired yet always happy. They were enjoying carefree weekends but had started talking about having children.
Feb. 5, 2002, was supposed to be Robert's day off, but his supervisors were in town to walk through the store. He wanted to be there.
That morning, on a Merrillville, Ind., highway, a Pepsi truck collided with his car, crushing him. The rig then jackknifed, smashing into another car and killing the car's 21-year-old woman driver.
Robert and Carla had been married 11 months.
On a night last week, Carla Freeman sat in a Clarkston restaurant, once more describing that day as friends and members of Robert's family listened stoically.
She recalled the details of the coroner showing up at her door and the burial in Clarkston without weeping. "I'm pretty strong," she said. "Really."
Robert's sister, Chris DeWitt, reached across the table and gripped Freeman's hand in hers. Freeman lamented how she is now giving up the fight. Meanwhile, she said, the man driving the Pepsi truck hasn't apologized.
"He's feeling guilty, I'm sure," she said. "Still . . ."
After minutes of silently nodding, DeWitt registered her disgust: "Crossed the yellow lines, killed two people and didn't get as much as a sneeze. Driver's error, they called it."
Still trying for citizenship
Freeman still wanted to be a U.S. citizen. She moved to Clarkston, where she lived with DeWitt and her husband and their three daughters. Dewitt and her girls all had Robert's laugh and those big Freeman family cheeks. Carla found life there comforting.
The girls call her "auntie" and fell in love with everything about her, from the accent to the stories from South Africa.
Inside the restaurant, Freeman's youngest niece, 7-year-old Sammy Jo, pressed her nose against the glass of an aquarium. Dressed in a summer dress and blue sweater, the ponytailed girl laughed as the clown fish chased each other.
"I told her I would never leave her," Freeman said, glancing at the girl. "She remembers that" -- tears began rolling down her cheeks -- "Why am I the one being punished for what happened?"
In January, she moved to the Portland area to try to find a job.
Within days, she was summoned to Seattle, where immigration officials told her they planned to deny her application to become a permanent resident. They told her she had 30 days to leave.
U.S. Sen. Gordon Smith's staff got her a second interview in Portland, where the officer behind the desk stopped Renison before he had finished pleading his client's case. "He handed us a piece of paper and said, 'Here's your letter of denial,' " Freeman recalled. "Then he said, 'Some people are waiting for you.' "
"They took me down a long corridor. They took away my jewelry. They shackled my legs and put me in a tiny cell," she said. "I was in there for seven hours."
Deportation seems certain
U.S. District Judge Owen Panner blocked the deportation order. But after a June 17 hearing, Panner said he had no choice but to deport Freeman.
Renison responded with an appeal, which he promises to push forward in Freeman's absence. "It's sad to see Carla go," he said, "but this embarrassing flaw in the law must be addressed."
The two-year rule was designed to fight sham marriages. Widows and widowers can apply for a green card, but only if they were married for at least two years before their spouse's death.
Renison plans to continue lobbying Oregon's congressional delegation to change the law. He said Freeman had fewer appeals options than someone who arrived in the United States illegally.
Until two months ago, Freeman swore not to budge until she was forced out of the country. But on a September afternoon, after a long visit to Robert's grave, she realized it was time to go.
Freeman feared that one or both of her parents might die while she waited in America. She wanted to go home and see them for Christmas. She also felt like a prisoner, having to get permission from the government just to visit her husband's grave.
Saturday was Robert Freeman's birthday. After setting red roses at his grave, she asked her nieces to sing "Happy Birthday" with her.
Snowflakes began to fall. That's Robert, she said. The weekend before he died, he promised to show how to make a snowman.
It's summer in South Africa, she said. "I know Robert will be with me there," she said. "I'm splitting him in half."
And she is leaving a kiss for him, forever carved in his gravestone on the hill above the river: "Ek is lief vir jou."
It's Afrikaans, a language of South Africa, she said. "It means 'I love you.' "
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