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Oltarsh & Associates, P.C. En Espanol

DEATH OF A U.S CITIZEN SPOUSE

For an immigrant spouse of a U.S. citizen, if the citizen spouse dies within 2 years the death effectively annuls the immigrant spouse’s right to permanent residency.Bringing a case in Federal Court may help. Recently a federal judge held that the Department of Homeland Security wrongfully ruled that a widow had a right to permanent residence even though she was only married 9 months. The case is now before the U.S. Court of Appeals in the Third Circuit. This case involves a surviving spouse who legally entered the U.S., married the citizen spouse but would lose permanent residence because the spouse died within 2 years after marriage.For no fault of the surviving spouse, the Immigration service in these cases is denying work authorization and licenses are not being renewed by states. The problem under this harsh interpretation by the Immigration Service is that in making a blanket prevision where there is a death of a U.S. citizen, the surviving spouse is presumed to have married fraudulently if the death occurs within 2 years of marriage. The Immigration Service should have to review each window or widower on a case by case basis as to good faith. The death itself is not relevant to the issue of good faith and is an illogical requirement. The Department of Homeland Security is currently reconsidering its law regarding surviving spouses, so help may be coming from the Courts on the Immigration Service itself.
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