U.S. Citizenship and Immigration Services (CIS) recently announced a new policy and procedure that will provide some relief to the surviving spouses of U.S. citizens who died before the second anniversary of their marriage. Surviving spouses qualify for this temporary program if they were married to, but not legally separated from, their U.S. citizen spouse at the time of that spouse's death; did not remarry; and are currently residing in the United States. Qualifying children are also eligible. Under the new policy, 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 US CIS would be the death of a U.S. Citizen spouse prior to the second anniversary of their marriage.

The change in policy is the result of CIS' effort to ameliorate the harsh impact of what has come to be known as the "widow penalty". The "widow penalty" prevented widows (and widowers) of deceased U.S. citizens, who were married less than two years at the time of the U.S. citizen's death, from becoming permanent residents based on the marriage. The policy change provides interim administrative relief in the form of deferred action to certain surviving spouses whose U.S. Citizen spouse died before the second anniversary of their marriage. "Deferred Action" is an exercise of prosecutorial discretion not to initiate removal proceedings against a particular foreign national for a specific period of time.

To benefit from this action, an affirmative application must be made to CIS on Form I-360. If approved, deferred action will be granted for two years. Approved applicants are eligible for work authorization upon a showing of economic necessity.

For additional information on eligibility for deferred action and the procedures for applying for deferred action under this change, click here.