Until there is a legislative solution to remedy the situation commonly referred to as the “widow penalty,” USCIS is providing interim administrative relief in the form of deferred action to surviving spouses whose U.S. citizen spouses died before the second anniversary of their marriage. The “widow penalty” prevents widow(er)s of deceased U.S. citizens, who were married less than two years at the time of the U.S. citizen’s death, from becoming permanent residents based on the marriage. Under this action USCIS also will consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law.

Q. What is deferred action?
A. Deferred action is an exercise of prosecutorial discretion not to pursue removal from the United States of a particular foreigner for a specific period. Deferred action is not intended to be a permanent remedy for this situation; rather it is a temporary discretionary solution. The grant of deferred action by USCIS does not confer or alter any immigration status. It does not affect any period of prior unlawful presence. The grant of deferred action does not convey or imply any waivers of inadmissibility that may exist, regardless of whether or not that inadmissibility is known to DHS at the time of the request for deferred action. Likewise, deferred action cannot be used to establish eligibility for any immigration benefit that requires maintenance of lawful status. Periods of time in deferred action do, however, qualify as periods of stay authorized by the Secretary for purposes of sections 212(a)(9)(B) and (C) of the Immigration and Nationality Act [INA]. Aliens with deferred action may apply for an Employment Authorization Document (EAD) if they can establish an economic necessity for employment.

Q. Who is covered under this program?
A. Surviving spouses (and their qualifying children), whose U.S. citizen spouses died before the second anniversary of marriage, who have not remarried since the death of the spouse, and are currently residing in the United States. Such surviving spouses are covered without restrictions on how long the U.S. citizen spouse has been deceased as long as the surviving spouse has not remarried.

Q. Who is not covered under this program?
A. This program does not cover surviving spouses or qualifying children of deceased U.S. citizens who are residing outside the United States or surviving spouses and children of a lawful permanent resident or other non-U.S. citizen. This program also does not cover surviving spouses or qualifying children of deceased U.S. citizens if the surviving spouse remarried at any time after the U.S. citizen’s death (regardless of whether or not the subsequent marriage has been terminated). The program does not cover any beneficiary who was legally separated from his or her U.S. citizen spouse at the time of the citizen’s death, or such beneficiary’s children.