Congress has abolished the "widow's penalty" for all application pending on or after Oct. 28, 2009 and a widow(er) of a USC can now obtain residency if he or she was married at the time of the principal's death and he or she petition's within two years. There is no longer a requirement that the beneficiary be married for at least 2 years. There is also a transition period until Oct. 28, 2011 that allows widow(ers) to file by that date if the citizen spouse died before Oct. 28, 2009; they were married for less than 2 years; and the widow(er) has not remarried. By regulation USCIS also requires that the widow(er) in the non-transition cases not remarry, nor be legally separated at the time of the spouse's death. 8 C.F.R. §204.2(b)(1). Children of the widow(er) are included and do not need to file a separate petition. INA §§201(b)(2)(A)(i), 204(a)(1)(A)(ii), 8 U.S.C. §§1151(b)(2)(A)(i), 1154(a)(1)(A)(ii); Matter of Minkova, 22 I&N Dec. 1161 (BIA 1999). Unmarried sons and daughters of the widow(er) may now be included under INA §204(l). The deceased need not have been a USC for 2 years as long as she or he was a USC at time of death. 8 C.F.R. §204.2(b)(1)(i); Cable, DOS, 92-State-052354 (Feb. 20, 1992), reprinted in 69 No. 9 Interpreter Releases 301 (Mar. 9, 1992). The widow(er) petition is submitted on Form I-360. If the petition was filed as an I-130 and the petitioner dies, it is automatically converted into an I-360 petition if the widow(er) otherwise qualifies for an I-360. 8 C.F.R. §204.2(i)(1)(iv) and §205.1(a)(3)(i)(C)(1); AFM at A widow(er) is not required to have another person file an I-864, but may file an I-864W. The new provision applies both to widow(er)s abroad who apply for IVs as well as AOS.
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