The requirement that widow(er)s of U.S. citizens be married at least two years at the time of death to be eligible to self-petition for immediate relative status was abolished on October 28, 2009 as part of the Department of Homeland Security Appropriations Act of 2010, P.L. 111-83, 123 Stat. 2145. Because the Act removed the words "for at least 2 years" from INA §201(b)(2)(A)(i), widow(er)s of U.S. citizens married any length of time can file an I-360 self-petition for immediate relative status, but must still file within two years of the death. Additionally, if the U.S. citizen spouse filed an I-130 prior to the death, the I-130 is automatically converted to an I-360 upon the death of the petitioner pursuant to 8 CFR §204.2(i)(1)(iv). This is a permanent change to the law, and cases involving a death that occurred on or after the Act's passage (October 28, 2009) should be adjudicated accordingly. The requirement that the widow(er) not have remarried was not changed.

The October 28, 2011 Deadline for Pre-October 28, 2009 Deaths

Public Law 111-83 contains a transition period for deaths that occurred prior to October 28, 2009, in effect providing the opportunity for any widow(er) married less than two years, at any time in the past, to file an I-360 within two years of the Act's passage. The deadline, therefore, for a widow(er) whose spouse died any time before October 28, 2009 is October 28, 2011. This is a critical deadline because if the death occurred more than 2 years ago, such widow(er) would not be able to qualify otherwise if he or she misses the deadline. For example, a widow whose spouse died in 1985 after less than 2 years of marriage could file for immediate relative status on Form I-360 by October 28, 2011. While the I-360 must be filed by the deadline, the widow(er) is not required to complete the immigration process by that date. Note: the transition period only applies to widow(er)s married less than 2 years at the time of death, as those married 2 years or more had a similar period in 1990 when the widow(er) category was first created.

There are some exceptions to the deadline for those cases considered "pending" at the date of enactment on October 28, 2009. While cases that were actually "pending" in the traditional sense are covered by this rule, cases that were denied before the Act's passage can also be considered "pending" if the widow(er)'s case comes within the Ninth Circuit class definition in Hootkins v. Napolitano, CV07-05696 (CAS) (C.D. Cal., filed Aug. 30, 2007). The Hootkins class action settlement is in effect until April 5, 2012. Questions relating to the settlement can be directed to lead class counsel, Brent Renison.

USCIS has issued guidance to assist in determining which cases are "pending" and which cases require the filing of a new I-360 (AILA Doc. No. 09121430). Essentially, a new I-360 is required in most cases, unless the I-130 was actually pending on the date of the law change, or the case falls directly within the Hootkins settlement. Because the October 28, 2011 deadline is a hard deadline for the I-360, after which no benefits may be sought, a protective filing may be advisable.

A Final Note on INA §204(l)

The DHS Appropriations Act also created new INA §204(l), which covers a wide range of other surviving relatives including immediate relatives. USCIS guidance on new §204(l) was issued on December 16, 2010 (AILA Doc. No. 11011061). Despite widow(er)s of U.S. citizens having the uniquely separate right to self-petition, some areas of §204(l) may be applicable to such widow(er)s as well (such as in the I-601 waiver context). See AILA Comment on USCIS Draft Memo Regarding INA 204(l) (AILA Doc. No. 10060363); AILA Practice Pointer: Final USCIS Guidance on Surviving Relatives (AILA Doc. No. 11011067).