Explanation of the DHS Appropriations Act, 2010, Pub. L. 1211-83 and specifically how it affected Spouses and Surviving Children of Lawful Permanent Residents

On October 28, 2009, President Obama signed the Department of Homeland Security Appropriations Act of 2010, Pub L. 1211-83, which amended the Immigration and Nationality Act to provide additional benefits to surviving spouses and children of U.S. citizens. Deceased Americans and Lawful Permanent Residents who were attempting to legalize their spouse and/or children upon their death.

This article will briefly address the amendment to the Immigration and Nationality Act dealing with widows and children of deceased US citizens and a recent internal memo from Acting Associate Director Donald Neufeld, Associate Director Lori Scialabba, and Acting Chief Pearl Chang with dated December 2, 2009. The article will then provide an argument for the surviving spouses and children of lawful permanent residents and other non-US citizens, as they are not addressed in the Interoffice Memorandum referenced above.

Section 568(c) of the DHS Appropriations Act of 2010
First, the amendment to the Immigration and Nationality Act for spouses and children of US citizens was in Section 568(c) of the DHS Appropriations Act of 2010. The amendment changed the language of the INA to now consider widows and children of US citizens as immediate relatives. even if the widow and deceased US citizen were married for less than 2 years. Prior to this amendment, there was a division in the courts as to whether foreign widows who had been married for less than 2 years remained immediate relatives for immigration purposes. Now, all widows who had an approved or pending I-130 on October 28, 2009 and who have not remarried can apply for adjustment of status to obtain their green card as an immediate relative. The other adjustment of status requirements, such as bona fide marriage and admissibility, are still required. This means that the window must still show that the marriage was entered into in good faith and that the couple did not marry solely to grant immigration benefits. It also means that the widow must be admissible and cannot have committed certain crimes or have other inadmissibility issues.

Section 568(d) of the DHS Appropriations Act of 2010
Next, the aforementioned Interoffice Memorandum barely touched on the other amendment to the INA that was specified in Section 568(d) of the DHS Appropriations Act of 2010. This section relates to the spouses and children of Lawful Permanent Residents, which in practice will likely be used by widows due to long waiting times for spouses and children of Lawful Permanent Residents.

On page 2 of the Internal Memorandum, dated December 2, 2009, the authors specifically state that a separate memorandum will provide more information about relief under section 568(d) of the Appropriations Act of 2010 for aliens who are beneficiaries survivors of non-citizens, but Lawful Permanent Residents. While the Service awaits the next memorandum, which would address this request, it must be argued that the Service is bound by the law as written.

What does the law currently say? Section 204(l)(1) of the Act provides that the alien petitions described in paragraph (2) must be adjudicated unless approval is not in the public interest. Paragraph (2) is INA §204(l)(2) and describes an alien in several ways. An applicable description would be in INA §204(l)(2)(B) which states “the beneficiary of a pending or approved petition for classification under section 203(a) or (d)”.

The Appropriations Act of 2010, specifically, section 568(d) amends INA §204(l) which requires the Service to adjudicate pending petitions for alien spouses notwithstanding the death of the petitioner provided that (1) the alien was present in the United States when the petitioner died, (2) the alien continues to reside in the United States, and (3) approval of the petition would not be against the public interest. In addition, this amendment applies to aliens described in INA §204(l)(2), also amended by section 568(d) of the Appropriations Act of 2010. Section 204(l)(2)(B) of the Act, as noted above, covers aliens who are “the beneficiary of a pending or approved application for classification under section 203(a) or (d)”.

Section 568(d) also made further amendments to INA §204(l)(2) covering widows and children of other noncitizens, such as derivatives of employment-based visas (INA § 204(l)(2)(C ), refugees (INA § 204(l)(2)(D)), T and U visa holders (INA § 204(l)(2)(E)), and asylum seekers (INA § 204(l)(2) (F).