State of Texas et al v. United States of America et al

Filing 64

REPLY in Support of 5 Opposed MOTION for Preliminary Injunction, filed by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Attachments: # 1 Exhibit Ex 1, # 2 Exhibit Ex. 2, # 3 Exhibit Ex. 3, # 4 Exhibit Ex. 4, # 5 Exhibit Ex. 5, # 6 Exhibit Ex. 6, # 7 Exhibit Ex. 7, # 8 Exhibit Ex. 8, # 9 Exhibit Ex. 9.a, # 10 Exhibit Ex. 9.b, # 11 Exhibit Ex. 10.a, # 12 Exhibit Ex. 10.b, # 13 Exhibit Ex. 10.c, # 14 Exhibit Ex. 10.d, # 15 Exhibit Ex. 10.e, # 16 Exhibit Ex. 10.f, # 17 Exhibit Ex. 10.g, # 18 Exhibit Ex. 10.h, # 19 Exhibit Ex. 10.i, # 20 Exhibit Ex. 10.j, # 21 Exhibit Ex. 10.k, # 22 Exhibit Ex. 10.l, # 23 Exhibit Ex. 10.m, # 24 Exhibit Ex. 10.n, # 25 Exhibit Ex. 10.0, # 26 Exhibit Ex. 10.p, # 27 Exhibit Ex. 10.q, # 28 Exhibit Ex. 10.r, # 29 Exhibit Ex. 10.s, # 30 Exhibit Ex. 11, # 31 Exhibit Ex. 12, # 32 Exhibit Ex. 13, # 33 Exhibit Ex. 14, # 34 Exhibit Ex. 15, # 35 Exhibit Ex. 16, # 36 Exhibit Ex. 17, # 37 Exhibit Ex. 18, # 38 Exhibit Ex. 19, # 39 Exhibit Ex. 20, # 40 Exhibit Ex. 21, # 41 Exhibit Ex. 22, # 42 Exhibit Ex. 23, # 43 Exhibit Ex. 24, # 44 Exhibit Ex. 25, # 45 Exhibit Ex. 26, # 46 Exhibit Ex. 27, # 47 Exhibit Ex. 28, # 48 Exhibit Ex. 29, # 49 Exhibit Ex. 30, # 50 Exhibit Ex. 31, # 51 Exhibit Ex. 32, # 52 Exhibit Ex. 33, # 53 Exhibit Ex. 34, # 54 Exhibit Ex. 35)(Oldham, Andrew)

EXHIBIT 21

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U.S. Citizenship
and Immigration
Services

SEP

4 2009

Memorandum
TO:
FROM:

Field Leadership

Av2i~e~ Director, Office of Domestic Operations
~
Acting Associate

~

SUBJECT:

Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children

I. Purpose
This amended memorandum provides guidance to U.S. Citizenship and Immigration Services
(USCIS) field offices and service centers regarding the processing of surviving spouses of deceased
U.S. citizens and qualifying children of the surviving spouses. It affords a new process by which
they may apply for deferred action. This policy guidance will be in effect until further notice and
may be revised as needed. This memorandum revises and replaces in its entirety the June 15, 2009
"Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children".

II. Background
Section 205.l(a)(3)(i)(C) of title 8 of the Code of Federal Regulations (8 CFR) requires that the
approval of Form 1-130, Petition for Alien Relative, be automatically revoked upon the death of the
petitioner if the beneficiary1 has not adjusted status in the United States or been inspected and
admitted as an immigrant. In such instances, the beneficiary may request a reinstatement of the
approval and USCIS, in its discretion, may grant such a request for humanitarian reasons. 8 CFR
205. l(a)(3)(i)(C)(2).
However, no avenue of immigration relief exists for the surviving spouse of a deceased U.S. citizen
ifthe surviving spouse and the U.S. citizen were married less than 2 years at the time of the citizen's
death and (1) the immigrant petition filed by the citizen on behalf of the surviving spouse has not
been adjudicated by USCIS at the time of the citizen's death, or (2) no petition was filed by the

1

Depending on context, the term beneficiary in this guidance may include both actual and potential beneficiaries of
Forms 1-130 filed on their behalf.

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Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children
Page2

citizen before the citizen's death. This issue has caused a split among the circuit courts of appeal
and is also the subject of proposed legislation in the U.S. Congress (e.g., bills S. 815 and H.R. 1870).

III. Policy Guidance
This policy guidance covers only (1) surviving spouses of U.S. citizens who died before the second
anniversary of the marriage, who have not remarried and were not legally separated or divorced from
the citizen spouse at the time of the citizen's death, and who are residing in the United States,2 and
(2) such surviving spouses' qualifying children. For purposes ofthis policy guidance, "qualifying
children" are any children of the surviving spouse of the deceased U.S. citizen who remain
unmarried and under 21 years of age and are residing in the United States (age determinations for
beneficiaries of Forms I-130 should be made as provided in section 201(f) of the INA).
This guidance applies to the aforementioned applicants without regard to their manner of entry into
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. 3
This guidance 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 guidance also does not cover surviving spouses or qualifying
children of deceased U.S. citizens ifthe surviving spouse remarried at any time after the U.S.
citizen's death (regardless of whether the subsequent marriage has been terminated). This guidance
does not cover any beneficiary who was legally separated or divorced from his or her U.S. citizen
spouse at the time of the citizen's death, or such beneficiary's children.
Since current section 201(b)(2)(A)(i) of the Immigration and Nationality Act (INA) treats covered
widow(er)s of U.S. citizens and their children as immediate relatives based upon a self-petition, they
are not covered by this guidance. They may file a Form I-360, Petition for Amerasian, Widow(er),
or Special Immigrant, in accordance with the instructions on the Form.
In order to address humanitarian concerns arising from cases involving surviving spouses of U.S.
citizens, USCIS is instituting the following policy guidance, which is effective immediately and until
further notice.

2

Section III(A) of this memorandum, however, regarding humanitarian reinstatement, shall apply to surviving spouses
outside the United States.
3
This guidance is applicable to a beneficiary who entered the United States on a K-1 Nonimmigrant Visa and married a
U.S. citizen, including cases in which the marriage was to a U.S. citizen other than the U.S. citizen petitioner who filed
the I-129F. If the U.S. citizen spouse died before the second anniversary of the marriage, the widow(er) is eligible for
deferred action or humanitarian reinstatement as described herein. Nothing in this memorandum, however, is intended to
provide or imply eligibility for immigrant classification or adjustment of status of any person granted deferred action or
humanitarian reinstatement, including widow(er) of U.S. citizens other than U.S. citizens who filed the Form I-129F who
are subject to section 245(d) of the INA.

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Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children
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It is not necessary for the widow(ers) of citizens to seek deferred action under the guidance in this
memorandum, in a case governed by First, Sixth or Ninth Circuit law. Courts in those jurisdictions
have held that the visa petitioner's death does not end a surviving spouse's eligibility for
classification as an immediate relative. Taing v. Napolitano, 567 F.3d 19 (1st Cir. 2009); Lockhart
v. Napolitano, 561F.3d611 (6th Cir. 2009); Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006).
Litigation on this issue is currently pending in the Supreme Court. Robinson v. Napolitano, No. 0994 (Cert petition filed July 23, 2009). Until such time as the Supreme Court decides the Robinson
case on the merits, however, the Taing, Lockhart and Freeman cases remain the law in their
respective circuits.
In the First, Sixth and Ninth Circuits, therefore, an officer should approve a Form 1-130, and should
also treat a pre-approval death as still valid, if the Form 1-130 is approvable, apart from the issue of
the petitioner's death. No request for reinstatement of a pre-death approval will be necessary.
Should the beneficiary in a First, Sixth or Ninth Circuit case bring to the attention of USCIS a Form
1-130 that was denied or revoked on or after August 30, 2001, solely because the petitioner had died
officers should consider the Taing, Lockhart and Freeman decisions as a proper basis for reopening,
on USCIS motion, the Form 1-130, as well as any related Form 1-485.4 It is not necessary for the
beneficiary to file a formal motion or pay any filing fee; any written request, such as a letter, will
suffice. For purposes of this paragraph, a Form 1-130 will be considered a First, Sixth or Ninth
Circuit case if:
•
•

the Form 1-130 is pending in, or the original decision was made by, a USCIS office in the
First, Sixth or Ninth Circuit; or
either the petitioner or the beneficiary resided in First, Sixth or Ninth Circuit at the time
of the petitioner's death. 5

Whether an alien is actually admissible is not an issue in the adjudication of a Form 1-130. Matter of
0-, 8 I&N Dec. 295 (BIA 1959). In light of the judgment in Hootkins v. Napolitano, _ F .Supp. 2d
_ , 2009 WL 2222839 (C.D.Cal. 2009), an officer will not consider the presence or absence of
Form 1-864 from a substitute sponsor in deciding whether to approve or deny a Form 1-130 in a First,
Sixth or Ninth Circuit case. The Hootkins court ruled, however, that the Class Plaintiffs had failed to
prove their claim that an alien widow(er) whose Form 1-130 is approved under Freeman does not
need a Form 1-864 from a substitute sponsor. 2009 WL 2222839 at *17, n. 23. The widow(er),
therefore, must submit a new Form 1-864 to obtain approval of the Form 1-485, unless the Form 1485 applicant is exempt from this requirement under 8 CFR 213a.2(a)(2)(ii). Thus, the officer will
treat the provision in AFM 21.5(a)(4)(B)(2) that requires submission of a new Form 1-864 from a
4

No action is necessary ifthe Form I-130 was denied or revoked before August 30, 2001. A civil action must generally
be brought against the United States within 6 years after the cause of action accrues. 22 U.S.C. 240l(a). August 30,
2001, is selected as the cut-off date for reopening First, Sixth and Ninth Circuit cases since that is 6 years before the
filing of Hootkins v. Napolitano, _ F.Supp. 2d _ (C.D.Cal. 2009), which began as a putative nation-wide class
action.
5

The First Circuit includes Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico; the Sixth Circuit
includes Kentucky, Michigan, Ohio, and Tennessee; and the Ninth Circuit includes Alaska, Arizona, California, Hawaii,
Idaho, Montana, Nevada, Oregon, Washington, and Guam. 28 U.S.C. § 41.

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Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children
Page4
substitute sponsor as applying only to the adjudication of the Form r-485, and not to the adjudication
of the Form r-130.
A widow( er) who is not able to submit a new Form r-864 from a substitute sponsor may seek
deferred action, even ifthe Form r-130 itself is approved. In the case of a widow(er) whose Form r485 cannot be approved because of the lack of a new Form r-864 from a substitute sponsor, a final
decision on the Form r-485 will be held in abeyance during the period in which a grant of deferred
action is in effect.
The Taing, Lockhart and Freeman cases apply only to First, Sixth and Ninth Circuit cases involving
Forms r-130 filed for the spouses of citizens. These cases do not apply to a Form r-130 filed by a
citizen for a step-child. Even ifthe citizen's widow( er) may have a Form r-130 and Form r-485
approved, therefore, any children of the widow( er) who are also beneficiaries of Forms r-130 filed
by the deceased citizen may seek deferred action under this guidance.

A. Form 1-130 Approved Prior to the Death of the U.S. Citizen Spouse (Petitioner)
Upon the death of the U.S. citizen petitioner, the approved Form r-130 is automatically revoked
pursuant to 8 CFR 205.l(a)(3)(i)(C). The beneficiary, however, may request reinstatement of the
revoked petition pursuant to 8 CFR 205.l(a)(3)(i)(C)(2). users may then exercise discretion and
grant the reinstatement after considering the facts and humanitarian considerations of the particular
case. If the request for humanitarian reinstatement is approved, the beneficiary may proceed to the
adjustment of status or consular processing stage.
This memorandum does not alter the process for reviewing a Form r-130 returned to users by a
U.S. Consular Officer overseas when the beneficiary is seeking a humanitarian reinstatement. If
users reinstates the Form r-130 returned by the consular officer, the r-130 should be forwarded to
the National Visa Center to allow the beneficiary to resume consular processing. Section IIr(A) of
this guidance, relating to humanitarian reinstatement, applies to beneficiaries who are within or
outside the United States.
If a beneficiary covered by this guidance requests humanitarian reinstatement, adjudicators should
presume that humanitarian reasons support a grant of the request. Absent extraordinary factors or a
failure to meet the regulatory requirements of 8 CFR 205.l (a)(3)(i)(C)(2), adjudicators should
favorably exercise discretion accordingly. If the request for reinstatement cannot be granted for any
reason other than confirmed or suspected fraud or issues of criminality or national security, the
beneficiary should be informed that he or she may request deferred action in the manner described in
IIr(E) below.

B. Form 1-130 Pending at the Time of Death of the U.S. Citizen Spouse (Petitioner)-Married
Less than 2 Years at Time of Death
Once users has received a copy of the U.S. citizen petitioner's death certificate, the pending, standalone Form r-130 should be held in abeyance at the pending location. Petitions may be transferred to

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Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children
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the Vermont Service Center to be consolidated with the A-file housing a deferred action request, if
such a request is made by the beneficiary (see further guidance below).
Any concurrently filed Form I-485, Application to Register Permanent Residence or Adjust Status,
and Form I-130, should be held in abeyance at the National Benefits Center until further guidance is
issued. The beneficiary will remain eligible to receive the interim benefits of advance parole and
employment authorization on the basis of the pending adjustment of status application.
If a Form I-485 was not concurrently filed, the beneficiary should be informed that he or she may
request deferred action in the manner described in section III (E) below.

Note: In instances where the beneficiary and deceased U.S. citizen petitioner were married for at
least two years at the time of the petitioner's death, the pending Form I-130 should be handled under
existing procedures, including conversion of the Form I-130 to a Form I-360 for special immigrant
classification as a widow/widower to the extent provided by 8 CFR 204.2(i)(l )(iv).

C. Form 1-130 Denied (Prior to the Issuance of this Guidance) due to the Death of the U.S.
Citizen Spouse (Petitioner)
A beneficiary who is the surviving spouse of a U.S. citizen petitioner and whose petition was denied
by USCIS (1) due to the death of the U.S. citizen petitioner, and (2) prior to the issuance of this
guidance, may request deferred action in the manner described in section III(E) below.

D. Form 1-130 Not Filed Prior to the Death of the U.S. Citizen Spouse
A beneficiary who was legally married to a now deceased U.S. citizen at the time of the U.S.
citizen's death, but for whom no Form I-130 was filed, may request deferred action in the manner
described in section III(E) below.
If the beneficiary was not legally married to, or was legally separated from, the deceased U.S. citizen
at the time of the U.S. citizen's death, a qualifying relationship does not exist. The beneficiary is
therefore not eligible to submit Form I-360 based on the specific policy guidance set forth in section
III(E) below.

E. Required Documentation for Requests for Deferred Action
Beneficiaries may request deferred action by submitting the following:
1) A Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with the appropriate,
non-waiveable filing fee (currently $375), completed in the format explained below; and
2) All of the documents requested in the Form I-360 filing instructions for widow/widowers.
The beneficiary of the Form I-360 must check box "m. Other, explain:" in Part 2 of the petition
and cite the basis for eligibility as "Deferred Action -- Surviving spouse of a deceased U.S.

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Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children
Page6

citizen, married less than 2 years." The Form 1-360 must be submitted to the Vermont Service
Center for deferred action consideration. Note that while USCIS is utilizing Form 1-360 for these
deferred action requests, such filings are NOT special immigrant self-petitions under current law.
They should be adjudicated as requests for deferred action only. In addition to the Part 2
information described above, the applicant must complete Parts 1, 3, 4, 7, 9, IO and 11 of the Form
1-360.
F. Decision on Requests for Deferred Action
Requests for deferred action based on the specific policy guidance set forth in this memorandum
may only be considered for: 1) surviving spouses of U.S. citizens whose U.S. citizen spouse died
before the second anniversary of the marriage and who are unmarried and residing in the United
States; and 2) their qualifying children who are residing in the United States.
The following persons are ineligible for deferred action: 1) beneficiaries whose immigrant visa
petition was denied or revoked for any reason other than or in addition to the death of the petitioning
U.S. citizen spouse; 2) widow(er)s who have remarried or were legally separated or divorced from
the U.S. citizen spouse at the time of the U.S. citizen's death; and 3) beneficiaries with other serious
adverse factors, such as national security concerns, significant immigration fraud, commission of
other crimes, or public safety reasons. A grant of deferred action is a discretionary action on the
part of USCIS. It is intended that this discretion should be liberally applied to provide a
humanitarian benefit to eligible beneficiaries. However, deferred action may be denied for serious
adverse factors, whether or not such factors are specifically identified in this guidance.
Requests for deferred action based on the specific policy guidance set forth in this memorandum will
not be considered for beneficiaries who: 1) are surviving spouses or qualifying children of non-U.S.
citizens; 2) are residing outside the United States; 3) meet the conditional marriage period set forth
in INA 201(b)(2)(A)(i); or 4) have remarried subsequent to the U.S. citizen's death (regardless of
whether the subsequent marriage has been terminated).
Once a decision on the request for deferred action has been made, the decision must be
communicated to the beneficiary via a decision letter. If the request has been granted, the deferred
action grant letter must state that the beneficiary is eligible to file Form I-765, Application for
Employment Authorization. If the request has been denied, the deferred action denial letter must cite
the reasons for the denial. A decision on a request for deferred action falls within the discretion of
the Secretary. A denial of a request for deferred action is not subject to administrative appeal or
judicial review. See INA§ 242(a)(2)(B), and (g).

G. Validity Period for Deferred Action
For any deferred action request received on or before May 27, 2011, the validity period of deferred
action based on the policy guidance set forth in this memorandum is two (2) years from the date of
grant of the Form I-360 request for deferred action.

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H. Eligibility for Employment Authorization
The appropriate classification for Form 1-765 filed on the basis of a deferred action grant is (C)(14)
pursuant to 8 CFR 274a.12(c)(14). Beneficiaries may submit Form 1-765, with the appropriate filing
fee (currently $340), using this classification at any time after the grant (but prior to the expiration)
of deferred action. However, they must demonstrate an economic necessity. The validity period for
an employment authorization document (EAD) under the classification (C)(14), based on the
specific policy guidance set forth in this memorandum is two (2) years, not to exceed the expiration
date of the grant of deferred action.
All requests for employment authorization based on the policy guidance set forth in this
memorandum must contain the appropriate required supporting documentation. Applicants must
follow currently established filing procedures for the Form 1-765 in accordance with the instructions
on the form. Fee waiver of the Form 1-765 fee is available on a case-by-case basis for substantiated
inability to pay as provided in 8 CFR 103.7(c)(l).
A beneficiary whose Form 1-485 is being held in abeyance may also file a Form 1-765, with the
appropriate filing fee. The appropriate classification for employment authorization filed on such a
basis is (C)(9) pursuant to 8 CFR 274a.12(c)(9). Evidence of an economic necessity is not required
if using this classification. A beneficiary whose application is being held in abeyance may have
been issued an employment authorization document valid for one year under category (C)(9). When
such an applicant files a Form 1-765 for renewal of his or her EAD under the classification (C)(9)
based on the specific policy guidance set forth in this memorandum, the validity period will be two
(2) years. An applicant with a valid EAD under the classification (C)(9) may file for renewal no
more than 90 days prior to the expiration date of the valid document. The employment authorization
may then be granted for two (2) years based on the specific policy guidance set forth in this
memorandum.

I. Effect of Grant of Deferred Action
The grant of deferred action by USCIS does not confer or alter any immigration status. It does not
convey or imply any waivers of inadmissibility that may exist, regardless of whether that
inadmissibility is known to DHS or other agencies at the time of the request for deferred action. A
grant of deferred action also does not eliminate any period of prior unlawful presence. However,
periods of time in deferred action do not count as unlawful presence for the purposes of sections
212(a)(9)(B) and (C) of the INA. Any period of time in deferred action qualifies as a period of stay
authorized by the Secretary of Homeland Security for those purposes.
As noted earlier in this memorandum, in the case of a widow( er) whose Form 1-485 cannot be
approved because of the lack of a new Form 1-864 from a substitute sponsor, a final decision on the
Form 1-485 will be held in abeyance during the period in which a grant of deferred action is in effect.

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Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children
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J. Eligibility for Advance Parole
Beneficiaries granted deferred action based on the policy guidance set forth in this memorandum or
whose applications for adjustment of status are being held in abeyance may request advance parole.
Such request may be made by filing Form I-131, Application for Travel Document, in accordance
with the Form 1-131 instructions and with the appropriate fee. Note, however, that departure from
the United States and return, even under a grant of advance parole, may adversely affect eligibility
for adjustment of status of aliens with past periods of unlawful presence.

K. Implementation
USCIS offices and centers are to begin implementing the instructions established in this
memorandum immediately.

L. Contact Information
Questions regarding this memorandum should be directed to the Office of Domestic Operations
through appropriate channels.
This memorandum is not intended to, and does not, create any right or benefit, substantive or
procedural, enforceable at law or in equity, by any party against the United States, its departments,
agencies or entities, its officers, employees, or agents, or any other person.

Distribution:
Regional Directors
District Directors
Field Office Directors
National Benefits Center Director
Service Center Directors

App. 0847