Integrity Legal

3rd Sep 2009

In a recent announcement from the United States Citizenship and Immigration Service (USCIS), Deferred Action will be granted to those widows and widowers of United States Citizens who die before the two year anniversary of the foreign spouse’s arrival in the United States of America. To quote the AILA press release:

“U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano, on June 9, 2009, announced that DHS would grant deferred action relief to surviving spouses of U.S. citizens who died before the second anniversary of their marriage. Based on the Secretary’s decision, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for an adverse decision from USCIS would be the death of a U.S. citizen spouse prior to the second anniversary of their marriage.”

The first question that probably comes to the mind of the reader is:  ok, so what does “deferred action” mean in practice? To further quote the USCIS press release:

“Deferred action is an exercise of prosecutorial discretion not to pursue removal from the United States of a particular foreigner for a specific period. Deferred action is not intended to be a permanent remedy for this situation; rather it is a temporary discretionary solution.”

In cases involving United States Immigrant visas, there are two types of immigrant visa categories for spouses of American Citizens. There is the Conditional Resident Visa (CR1) and the Immediate Relative Visa (IR1). The Conditional Resident Visa is meant for spouses of United States Citizens who have been married for less than two years. IR-1 visas are meant for those who have been married for more than 2 years. When a Permanent Resident is in CR-1 status, then they must apply for a lift of conditions before they change status to IR-1. If residence is conditional, then the immigrant must leave the USA  if the lift of conditionality is not filed and approved. In many cases, only the US Citizen spouse can file to have the conditions lifted. Therefore, if the US Citizen spouse dies before the lift of conditions is filed and approved then the Conditional Permanent Resident could fall out of status as soon as 2 years is up. Deferred action places the Resident in a kind of limbo in which they can lawfully remain in the USA, but are not moved in IR-1 status. The press release goes further and states:

“Aliens with deferred action may apply for an Employment Authorization Document (EAD) if they can establish an economic necessity for employment.”

Therefore, the alien in the US in this situation could work and reside without fear of being removed, but the situation would seem to be simply a temporary stopgap measure and it does not appear that this would be a viable long term legal option.

Bear in mind that this issue only deals with US spousal and fiancee visas after adjustment of status. Therefore, the above analysis is not relevant to the K1 visa or the K3 visa per se, although it would be relevant if the foreign fiancee or spouse adjusts to CR1 status.

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