San Diego Immigration Attorney

RELIEF FOR WIDOWS OF U.S. CITIZENS

In my last article, I wrote about the provision in Immigration law known as the “widow penalty”. The provision provides that if the U.S. citizen spouse dies within two (2) years of the marriage, the non-citizen surviving spouse immediately loses resident status and can be deported. On June 9, 2009, U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano granted a two-year reprieve to immigrants whose applications for permanent residency have been denied because their U.S. citizen spouses died during the application process. The reprieve includes unmarried children under 18 years old of the surviving spouse. While the Secretary’s order does not change or abolish the widow penalty, it suspends action, including deportation proceedings. The U.S. Immigration and Customs Enforcement (ICE) will defer initiating or continuing removal proceedings, or executing final orders of removal against qualified widow or widowers and their children. USCIS (U.S. Citizenship and Immigration Services) will also consider requests for humanitarian reinstatement favorably where previously approved petitions for widows or widowers had been revoked because of the widow penalty. DHS will be issuing guidelines on how to avail of this relief.

The opponents to the widow penalty want to abolish the provision. What was given by DHS was not a permanent fix, but it’s better than nothing. The widow penalty is unfair because the immigrant does not cease being a spouse when the U.S. citizen partner dies during processing of the residency application. Also, the alien spouse should not be punished further if his or her U.S. citizen spouse dies. While we support the intent of lawmakers to make it more difficult for foreigners to get green cards through sham marriages with U.S. citizens, the unfortunate widow penalty should be an exception. As long as the foreign-born spouse can prove that the marriage was bona fide, the widow penalty should not be imposed. In the case of divorce during the two-year period, the foreign-born spouse can file a waiver to the joint filing of petition to lift the conditional residence status by proving bona fide marriage. The same rule should apply to the widow or widower of U.S. citizen. There seems to be a lot of inequities in our immigration law that need to be fixed. I love it when I sue the government.

admin Uncategorized