II 

111TH CONGRESS 

1ST SESSION S. 1247 

To amend the Immigration and Nationality Act to promote family unity, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 11, 2009 

Mr. MENENDEZ (for himself, Mrs. GILLIBRAND, and Mr. LEAHY) introduced 

the following bill; which was read twice and referred to the Committee 

on the Judiciary 

A BILL 

To amend the Immigration and Nationality Act to promote 

family unity, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Orphans, Widows, and 

5 Widowers Protection Act’’. 

6 SEC. 2. RELIEF FOR ORPHANS AND SPOUSES OF UNITED 

7 STATES CITIZENS AND RESIDENTS. 

8 (a) AMENDMENT.—Section 201(b)(2)(A)(i) of the 

9 Immigration and Nationality Act (8 U.S.C. 

10 1151(b)(2)(A)(i)) is amended— 


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1 (1) by inserting ‘‘or, if married to such citizen 

2 for less than 2 years at the time of the citizen’s 

3 death, an alien who proves by a preponderance of 

4 the evidence that the marriage was entered into in 

5 good faith and not solely for the purpose of obtain6 ing an immigration benefit’’ after ‘‘for at least 2 

7 years at the time of the citizen’s death’’; and 

8 (2) by adding at the end the following: ‘‘For 

9 purposes of this subsection, an alien who was the 

10 child or parent of a citizen of the United States on 

11 the date of the citizen’s death shall be considered to 

12 remain an immediate relative after such date if the 

13 alien parent files a petition under section 

14 204(a)(1)(A)(ii) not later than 2 years after such 

15 date or the alien child files such a petition before 

16 reaching 21 years of age.’’. 

17 (b) SPECIAL RULE FOR ORPHANS AND SPOUSES.— 

18 In applying section 201(b)(2)(A)(i) of the Immigration 

19 and Nationality Act, as amended by subsection (a), to an 

20 alien whose citizen or lawful permanent resident relative 

21 died before the date of the enactment of this Act, the alien 

22 relative may file the classification petition under section 

23 204(a)(1)(A)(ii) of such Act not later than 2 years after 

24 the date of the enactment of this Act. 


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1 (c) ELIGIBILITY FOR PAROLE.—If an alien was ex2 cluded, deported, removed, or departed voluntarily before 

3 the date of the enactment of this Act based solely upon 

4 the alien’s lack of classification as an immediate relative 

5 (as defined in section 201(b)(2)(A)(i) of the Immigration 

6 and Nationality Act) due to the death of the alien’s citizen 

7 relative— 

8 (1) such alien shall be eligible for parole into 

9 the United States pursuant to the Attorney Gen10 eral’s discretionary authority under section 

11 212(d)(5) of such Act (8 U.S.C. 1182(d)(5)); and 

12 (2) such alien’s application for adjustment of 

13 status shall be considered notwithstanding section 

14 212(a)(9) of such Act (8 U.S.C. 1182(a)(9)). 

15 SEC. 3. ADJUSTMENT OF STATUS. 

16 (a) SURVIVING SPOUSES, PARENTS, AND CHIL17 DREN.—Section 245 of the Immigration and Nationality 

18 Act (8 U.S.C. 1255) is amended by adding at the end the 

19 following: 

20 ‘‘(n) APPLICATION FOR ADJUSTMENT OF STATUS BY

21 SURVIVING SPOUSES, PARENTS, AND CHILDREN.— 

22 ‘‘(1) IN GENERAL.—An alien described in para23 graph (2) who applies for adjustment of status be24 fore the death of the qualifying relative may have 


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1 such application adjudicated as if such death had 

2 not occurred. 

3 ‘‘(2) ALIEN DESCRIBED.—An alien described in 

4 this paragraph is an alien who— 

5 ‘‘(A) is an immediate relative (as described 

6 in section 201(b)(2)(A)); 

7 ‘‘(B) is a family-sponsored immigrant (as 

8 described in subsection (a) or (d) of section 

9 203); or 

10 ‘‘(C) is a derivative beneficiary of an em11 ployment-based immigrant under section 203(b) 

12 (as described in section 203(d)).’’. 

13 (b) REFUGEES.—Section 209(b) of the Immigration 

14 and Nationality Act (8 U.S.C. 1259(b)) is amended by 

15 adding at the end the following ‘‘An alien who is the 

16 spouse or child of a refugee (as described in section 

17 207(c)(2)) or an asylee (as described in section 208(b)(3) 

18 who applies for adjustment of status before the death of 

19 a qualifying relative may have such application adju20 dicated as if such death had not occurred.’’. 

21 SEC. 4. TRANSITION PERIOD. 

22 (a) IN GENERAL.—Notwithstanding a denial of an 

23 application for adjustment of status for an alien whose 

24 qualifying relative died before the date of the enactment 

25 of this Act, such application may be renewed by the alien 


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1 through a motion to reopen, without fee, if such motion 

2 is filed not later than 2 years after such date of enact3 ment. 

4 (b) ELIGIBILITY FOR PAROLE.—If an alien described 

5 in section 245(n)(2) of the Immigration and Nationality 

6 Act (8 U.S.C. 1255(n)(2)) was excluded, deported, re7 moved, or departed voluntarily before the date of the en8 actment of this Act— 

9 (1) such alien shall be eligible for parole into 

10 the United States pursuant to the Attorney Gen11 eral’s discretionary authority under section 

12 212(d)(5) of the Immigration and Nationality Act (8 

13 U.S.C. 1182(d)(5)); and 

14 (2) such alien’s application for adjustment of 

15 status shall be considered notwithstanding section 

16 212(a)(9) of such Act (8 U.S.C. 1182(a)(9)). 

17 SEC. 5. PROCESSING OF IMMIGRANT VISAS AND DERIVA18 TIVE PETITIONS. 

19 (a) IN GENERAL.—Section 204(b) of the Immigra20 tion and Nationality Act (8 U.S.C. 1154(b)) is amended— 

21 (1) by striking ‘‘After an investigation’’ and in22 serting the following: 

23 ‘‘(1) IN GENERAL.—After an investigation’’; 

24 and 

25 (2) by adding at the end the following: 


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1 ‘‘(2) DEATH OF QUALIFYING RELATIVE.— 

2 ‘‘(A) IN GENERAL.—Any alien described in 

3 subparagraph (B) whose qualifying relative died 

4 before the completion of immigrant visa proc5 essing may have an immigrant visa application 

6 adjudicated as if such death had not occurred. 

7 An immigrant visa issued before the death of 

8 the qualifying relative shall remain valid after 

9 such death. 

10 ‘‘(B) ALIEN DESCRIBED.—An alien de11 scribed in this subparagraph is an alien who 

12 is— 

13 ‘‘(i) an immediate relative (as de14 scribed in section 201(b)(2)(A)); 

15 ‘‘(ii) a family-sponsored immigrant 

16 (as described in subsection (a) or (d) of 

17 section 203); 

18 ‘‘(iii) a derivative beneficiary of an 

19 employment-based immigrant under section 

20 203(b) (as described in section 203(d)); or 

21 ‘‘(iv) the spouse or child of a refugee 

22 (as described in section 207(c)(2)) or an 

23 asylee (as described in section 

24 208(b)(3)).’’. 

25 (b) TRANSITION PERIOD.— 


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1 (1) IN GENERAL.—Notwithstanding a denial or 

2 revocation of an application for an immigrant visa 

3 for an alien whose qualifying relative died before the 

4 date of the enactment of this Act, such application 

5 may be renewed by the alien through a motion to re6 open, without fee, if such motion is filed not later 

7 than 2 years after such date of enactment. 

8 (2) INAPPLICABILITY OF BARS TO ENTRY.— 

9 Notwithstanding section 212(a)(9) of the Immigra10 tion and Nationality Act (8 U.S.C. 1182(a)(9)), an 

11 alien’s application for an immigrant visa shall be 

12 considered if the alien was excluded, deported, re13 moved, or departed voluntarily before the date of the 

14 enactment of this Act. 

15 SEC. 6. NATURALIZATION. 

16 Section 319(a) of the Immigration and Nationality 

17 Act (8 U.S.C. 1430(a)) is amended by inserting ‘‘(or, if 

18 the spouse is deceased, the spouse was a citizen of the 

19 United States)’’ after ‘‘citizen of the United States’’. 

20 SEC. 7. EFFECTIVE DATE. 

21 The amendments made by this Act shall apply to all 

22 petitions or applications described in such amendments 

23 that— 

24 (1) are pending as of the date of the enactment 

25 of this Act; or 


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1 (2) have been denied, but would have been ap2 proved if such amendments had been in effect at the 

3 time of adjudication of the petition or application. 

Æ 


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