Eleventh Circuit Court Holds That Remarriage Does Not Bar Green Card Eligibility for Surviving Relative


In Williams v. U.S. Dept. of Homeland Security, the United States Court of Appeals for the Eleventh Circuit reversed the district court's grant of summary judgment and remanded the case, finding that remarriage does not bar adjustment of status for beneficiaries of a recently enacted law allowing relief for spouses and other relatives of deceased U.S. Citizens. 

In Williams, the foreign national, Ms. Pascoal, married a U.S. Citizen, who filed an I-130 relative petition on her behalf.  Concurrently, Ms. Pascoal also filed an I-485, application to adjust status, and her husband filed an affidavit of support.  Ms. Pascoal’s husband passed away before U.S. Citizenship and Immigration Services (USCIS) could make a decision on the applications.  The USCIS denied all applications and informed Ms. Pascoal that she could file an I-360 self-petition as a widow, which she did on July 16, 2004.  At that time, the relevant regulatory section contained a requirement that the foreign national spouse had been married to the U.S. Citizen for at least two years at the time of the citizen’s death.  Because Ms. Pascoal had not been married to her late husband for at least two years before he passed, DHS denied Ms. Pascoal’s I-360 self-petition. 

Ms. Pascoal remarried and eventually divorced her second husband.  After her divorce, she sought to reopen the original I-130 petition filed by her late husband before he passed.  Her motion to reopen was based on the newly enacted provision in the federal immigration statute which allowed people like her to reopen an earlier filed I-130 petition that had been denied due to the death of the petitioning U.S. Citizen relative.  However, the USCIS denied her application claiming that her remarriage barred her from taking advantage of the new immigration provision.  The U.S. District Court for the Middle District agreed with the government.  However, the Eleventh Circuit Court reversed and remanded, holding that, with respect to I-130 petitions being adjudicated notwithstanding the death of the petitioner, there is no prohibition based on remarriage which included I-130 petitions converted to I-360 petitions pursuant to USCIS policy. 

If you were or are the beneficiary of an I-130 petition and the petitioner has passed away, you may be eligible for certain survivor benefits under Section 204(l) of the Immigration and Nationality Act (INA). 

Topics:  DHS, Form I-130, Green Cards, Marriage, USCIS

Published In: Family Law Updates, Immigration Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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