USCIS Updated Guidance on Surviving Spouse of U.S. Citizen

The U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum updating guidance on the approval of immediate relative spousal petitions after the death of the U.S. citizen spouse in cases where the widow/er has remarried. The memo, and the related revisions to the USCIS Adjudicator’s Field Manual, are in response to a 2014 U.S. Court of Appeals decision, Williams v. DHS Secretary.

Background on INA 204(l) Survivor Provisions

For many years, in most situations, the death of the petitioning family member in a pending permanent residency (green card) case meant the petition would be denied. The same was true if the primary beneficiary of a family- or employment-based immigrant petition died while the green card case was still pending. This changed in late 2009 with an addition of 204(l) to the Immigration and Nationality Act (INA), which provides a number of key legal protections to the surviving relatives if certain conditions are met. See the MurthyDotCom NewsBrief, USCIS on Immigration Benefits after Death of Qualifying Relative (08.Oct.2012) for more details on obtaining immigration benefits under 204(l).

Elimination of So-Called “Widow Penalty”

As mentioned, before the passage of 204(l), the death of the petitioning relative typically resulted in the end of the case. One exception to this rule, however, was INA 204(b)(2)(A)(i), which allowed a foreign national widow/er of a U.S. citizen to self-petition by filing an I-360 petition. But, this only applied if the couple had been married for at least two years prior to the death of the U.S. citizen spouse. This two-year requirement was known as the widow penalty.

This rule that allows a widow/er to self-petition still exists. But, in passing 204(l) in 2009, Congress also took the opportunity to broaden the protections offered under INA 204(b)(2)(A)(i) by eliminating the widow penalty.

USCIS 204(l) Interpretation Leads to Lawsuit

In 2010, the USCIS issued guidance on 204(l) indicating that these protections do not apply in situations where a U.S. citizen files an immediate relative petition for a spouse. The USCIS justified this position based on the fact that a widow in this situation would be eligible to file an I-360 petition. The USCIS, however, failed to recognize that there were certain situations, such as the one presented in the Williams case, in which a widow may need to rely on 204(l) for immigration benefits.

Overview of Williams v. DHS Secretary

In Williams, the U.S. citizen husband filed an immigrant petition (form I-130) for his wife in 2002. Unfortunately, while the petition was still pending, and before the couple reached their two-year anniversary, Mr. Williams died. Accordingly, the USCIS denied the I-130 petition in 2003. And, because the marriage had lasted less than two years, her I-360 petition was denied as well.

Shortly before the widow penalty was eliminated in 2009, Ms. Williams remarried. When 204(b)(2)(A)(i) was amended later that year, it potentially would have made it possible for her to refile an I-360. However, in order for a widow to qualify under this provision of the law, one cannot have remarried. Out of options, Ms. Williams went on to file a lawsuit against the U.S. Department of Homeland Security (DHS), arguing that the USCIS interpretation of 204(l) was flawed and that she qualified for the benefits offered by this provision.

In 2014, a federal circuit court ruled in favor of Ms. Williams. The court determined that the USCIS had misinterpreted the law and held that the foreign national widow/er of a U.S. citizen could qualify for immigration benefits under 204(l).

Qualifying for 204(l) as Widow/er

Based on the court’s holding in Williams, the USCIS released an updated memorandum in November 2015. As detailed in the memo, if a U.S. citizen files an I-130 for a spouse and subsequently dies, one of the following occurs.

  • The surviving spouse who has not remarried will be treated as a widow/er. The I-130 petition is automatically converted to an I-360.
  • If the surviving spouse has remarried, the I-130 is not converted to an I-360. The surviving spouse instead may seek benefits under INA 204(l), assuming the widow/er otherwise qualifies. It does not matter whether or not the I-130 was approved before the petitioner’s death.


The facts in the Williams case are complicated, and provided a scenario that was not considered by the USCIS when INA 204(l) was interpreted initially. However, this change in policy and interpretation will help some surviving spouses from falling through the cracks in immigration law.


Copyright © 2015, MURTHY LAW FIRM. All Rights Reserved

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.