New Relief For Widows of a Petitioning Spouse

One of the great tragedies in life is loss of a husband or wife. Recently the courts have ruled to prevent USCIS from making the situation worse be denying immigrant visa cases filed by the now deceased U.S. Citizen spouse. While the USCIS allows a United States Citizen spouse to file an immigrant visa petition for their husband or wife, there are serious questions raised when the petitioning spouse dies prior to approval of the immigrant visa and legal permanent resident petition.

USCIS issued regulations which required that the petitioning U.S. Citizen spouse be married to the immigrant for a period of two years and that there was no separation from the immigrant prior to their death. Even in the case of an immigrant who's spouse did not file a petition on their behalf they could be entitled to file a self-petition (I-360) on their own behalf.

USCIS took the controversial position that following death of the husband or wife the immigrant is no longer a "spouse" and no longer entitled to a benefit unless two years had passed between the marriage and the death of the spouse.

This USCIS position has been struck down in the appellate courts including the Ninth Circuit, which governs California, Nevada, Hawaii, Idaho, Montana, Oregon and Washington. The Ninth Circuit Court of Appeal, in the case Freeman v. Gonzalez, held that individuals remain an immediate relative spouse for the purpose of being eligible to become a legal permanent resident, and that the death of spouse did not strip them of their ability to change status and obtain a green card.

District Courts around the country have adopted the holding in Freeman granting relief in New Jersey, New York, Massachusetts and Ohio. Now a Sixth Circuit Court has also held that the widow-penalty should be eliminated in the case of Ms. Nelly Lockhart. Ms. Nelly Supangan Lockhart of the Philippines married a US citizen who filed a petition to allow Ms. Lockhart to adjust her status as “immediate relative” to become US citizen and completed all requirements. The couple had a son; were married and lived together as man and wife, however, Mr. Lockhart died before the couple could complete two years of marriage.

This recent case is important because it crystallizes the concept of the "surviving spouse" and makes clear that USCIS application of regulations is inappropriate. In light of these recent cases not only governing application of Federal Laws in the 9th Circuit over California, but in numerous other states and those state governed by the 6th Circuit court of appeals individuals who have lost a U.S. Citizen spouse prior to their interview should be prepared to discuss their status as a surviving spouse with immigration officer. Persons who have had their case denied due to death of a spouse should review their ability to re-file their petition with a qualified attorney who is prepared to assert their surviving spouse status.

Robert J. DuPont is the founding attorney for The Law Offices of Robert J. DuPont. Mr. DuPont graduated from Yale University and USC Law School. He is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California, as well as the 9th Circuit Court of Appeals. Mr. DuPont has been a speaker at ILW, a leading immigration law publisher. He was the founder of the Immigration Law Committee with the Beverly Hills Bar Association. Mr. DuPont has risen to prominence with over a decade’s practice in the field of immigration law. He has brought cases to their successful conclusion before the EOIR, BIA, AAO, Federal District Court and 9th Circuit Court of Appeals.

A similar version of this article may have been published in the Asian Journal.