In the unfortunate event that a U.S. citizen spouse dies before being able to file documentation to legalize their alien spouse, there may be options.  For many years, aliens in this regrettable situation were in a sad form of legal limbo.  In 2009, the U.S. Citizenship and Immigration Services (USCIS) issued long awaited guidance regarding the means by which the surviving spouse of a U.S. citizen may obtain immigration benefits through “deferred action”.  Deferred action is a term for the exercise of prosecutorial discretion where the government indicates that it will not pursue removal actions against a particular alien for a particular period of time while granting certain benefits in the meantime.  It is not intended to be permanent, rather it is a temporary solution to an issue that is the subject of ongoing legislative and judicial efforts to resolve.  Each grant under the government’s program is good for two years.

Individuals who qualify for deferred action are the spouses of deceased U.S. citizens who died before the second anniversary of their marriage.  The surviving spouse qualifies for the temporary program if he or she was married to, and not legally separated from, the U.S. citizen spouse at the time of the spouses’ death; did not remarry; and is currently residing in the United States.

A surviving spouse qualifies for deferred action regardless of whether the U.S. citizen filed a Form I-130 petition for him or her.  He or she may ask to have qualifying children included in the deferred action request.  To be considered a “qualifying child” of a surviving spouse, the child must be younger than twenty-one or otherwise a “child” when the deferred action request is submitted; must currently reside in the United States; and must be unmarried.

Work authorization is available to surviving spouses and qualifying children who are granted deferred action and who can establish economic necessity.  Travel authorization is also available to surviving spouses and qualified children granted deferred action.

A competent immigration attorney can assist you in pursuing your efforts to obtain deferred action.