USCIS Issues Guidance on Processing of Petitions by Surviving Spouse of U.S. Citizens

The Department of Homeland Security (USCIS) issued written guidance for its adjudicators on how to handle applications for surviving spouses of U.S. citizens, June 2009. The guidance instructs adjudicating officers and consular offices and posts how to process applications where the sponsoring U.S. citizen dies prior to the filing of or approval of petitions. The memorandum acknowledges the regulations which prescribe that the I-130 is automatically revoked upon the death of the sponsoring U.S. citizen. It also discusses that some courts do not subscribe to this regulation and do not automatically revoke or terminate the status upon the death of the sponsoring U.S. citizen.

Where an otherwise approved I-130 is automatically revoked, the beneficiary may request a reinstatement of the approval. Upon consideration, the USCIS may grant the request for humanitarian reasons and continue to process the underlying applications. For those in areas where the courts do not apply the automatic revocation policy, beneficiaries are encouraged to contact local USCIS attorney for direction.

pdf [Read the entire memorandum on surviving spouse applications]

Deferred Action Authorized for Surviving Spouses of US Citizens

As of August 31, 2009, the U.S. Citizenship and Immigration Services has authorized deferred action for surviving spouses of U.S. citizens. Under the new directive, surviving spouses of U.S. citizens who died before the second anniversary of the marriage may be eligible for this program. Surviving spouses must have been married to a U.S. citizen; must not be legally separated at the time of the death; have not remarried; and must currently reside in the United States.

Under the Deferred Action program, qualifying aliens are not granted any immigration status. Instead, prosecutorial discretion is exercised not to pursue their removal from the United States. This program permits them to remain and work in the United States with authorization for the duration of the deferred action. Qualifying children of the alien may also be eligible for benefits under certain circumstances. This program is beneficial to those aliens married to United States citizens who green card and paperwork was not completed prior ro the death of the U.S. citizen spouse who would have sponsored the application.

pdf [Read the entire guidance on surviving spouses of U.S. citizens]

I-601 Hardship Waiver Processing Flowchart for Ciudad, Mexico

A flowchart published on September 9, 2009 by the USCIS charts the process for handling and appealing I-601 l waiver and green card decisions when denied. This applies to I-601 hardship waiver and green card applications submitted in Ciudad Juarez, Mexico. Such I-601 hardship waiver applications are typically submitted in instances where an alien married to a U.S. citizen who came in illegally and without inspection does not qualify for adjustment of status under section 245(I). Such aliens are required to apply for a waiver of the 3/10 year bar at a U.S. consulate prior to obtaining U.S. residency and returning to the United States.

This flowchart explains the entire application process as well as the review and appeal process in the event the application is denied.

pdf [Review the I-601 processing flow chart]

Directive on Successor Employer For I-140 Labor Certification Applications

August 6, 2009 - The USCIS has issued a memorandum addressing successor-in-interest determinations when adjudicating I-140 petitions whose PERM labor certification applications were approved with a different organizational/employer name.

This typically occurs when the employing organization underwent a reorganization, merger, acquisition, asset sale or other corporate name change after the Labor Certification application was submitted. This policy memorandum issues guidelines to use in determining whether a valid successor in interest exists in the new organization and whether the new entity may assume and continue sponsorship of the I-140 application. It also lists the factors to consider in determining whether the job opportunity remains the same or similar as well as a list of documentary evidence required for proper evaluation of the changed or transferred ownership.

pdf [Read the entire PERM/I-140 successor interest memorandum]

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