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. 561 F.3d 611 (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 I-130, and should also treat a pre-approval death as still valid, if the Form I-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 I-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 I-130, as well as any related Form I-485. 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.