Can a spouse of a US citizen continue her green card application after her US citizen husband passed away? A case decided by the First Circuit of the US Court of Appeals says she can.
Mr. and Mrs. Taing got married in October 2004 in the United States and in December the same year Mr. Taing filed an immediate relative green card petition for his wife. It was a straight forward case until in July 2005, Mr. Taing passed away. The USCIS subsequently terminated Mrs. Taing green card application procedure. The reason was that USCIS thinks Mrs. Taing is no longer a spouse of Mr. Taing after Mr. Taing’s death. The USCIS then drew a conclusion that since Mrs. Taing is no longer an "immediate relative" of Mr. Taing, her green card application should therefore be terminated. To see the details of the Court’s decision, please click here.
Mrs. Taing filed a complaint in a US District Court and then the case was appealed to the First Circuit Court. The Court disagrees with the USCIS’ position. The First Circuit Court rules that the plain language in the Immigration and Nationality Act is clear that Mrs. Taing is still Mr. Taing’s spouse even after Mr. Taing’s death, and therefore Mrs. Taing should be able to contine her green card application under the circumstance.
The result of the case is justified in that Mrs. Taing’s green card application should not be affected because of the fact that Mr. Taing died before the USCIS approves Mrs. Taing’s green card application. Should USCIS processed the application faster or Mr. Taing lives another few years, this case might have not happened.
Similar cases in the Ninth and Sixth Circuits have reached the same result. However the Third Circuit has ruled otherwise. Therefore applicants living in different areas of the United States may have different results in the same case scenario as in the Matter of Taing. It needs the ultimate decision of the US Supreme Court to solve this issue.