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Congress Ends The Widow Penalty

by Brent Renison

Author's note: The widow penalty is finally, finally over! The new law, Public Law No. 111-83, amends the Immigration and Nationality Act by removing the words “for at least two years”, allowing widows of U.S. citizens to file petitions for resident status regardless of the length of marriage, provided the marriage is bona fide! This is the case-by-case adjudication, instead of automatic denial, that we have been fighting for!

October 28, 2009 - PRESIDENT OBAMA SIGNED H.R. 2892 INTO LAW TODAY, MAKING A NEW LAW AND ENDING THE WIDOW PENALTY! The new law is Public Law No. 111-83.

October 27, 2009 - President Obama is expected to sign H.R. 2892, the DHS Appropriations Conference Report, as early as tomorrow according to some sources. The White House Executive Clerk's office could not confirm that information, but acknowledged that the bill had been received by the President.

Thanks to a concerted effort by families, legal counsel and legislators over a period of more than five years, a horrible practice that added insult to injury is now at an end. Media accounts, including those in the Washington Post, New York Times, and CBS News 60 Minutes have drawn attention to the more than two hundred widows and widowers of U.S. citizens facing the widow penalty. The New York Times Editorial, published April 28, 2009, summarized the issue and its solution succinctly:

“For hundreds of unlucky immigrants, the death of a wife or husband has been quickly followed by an order to leave the country. It’s called the “widow penalty,” a tragic quirk in federal law that unfairly punishes recently married immigrants whose citizen spouses die before their green-card paperwork is processed.

United States Citizenship and Immigration Services, which handles applications for legal permanent residence, says its hands are tied. According to its interpretation of the law, if a citizen dies before the agency acts on his or her petition for a spouse’s green card — and if the marriage is less than 2 years old — the surviving spouse automatically ceases to be a spouse.

The petition dies with the petitioner. No exceptions can be made.

Advocates for shattered families — grieving widows and their young children, grandparents about to be bereaved a second time, as their grandchildren are deported — have sought legal relief for years. Congress has been no help so far, but a number of courts have rejected the absurdity of a situation in which the bonds of marriage, and a chance at citizenship, can be destroyed by routine bureaucratic processing delays.

The most recent victory came last week in a class-action suit in federal district court in Los Angeles. Judge Christina A. Snyder instructed the Department of Homeland Security, to which Citizenship and Immigration Services belongs, to reopen the cases of 13 immigrants who had been denied green cards after their American spouses had died. The lawyer who brought the case, Brent Renison, is hoping that momentum is finally building to correct the injustice.

As other cases make their way through courts around the country, the best solution remains the simplest: a legislative or administrative fix. Bills to remedy the flaw have been introduced in the House and Senate, and the Department of Homeland Security has said the widow penalty is among the rules and procedures it has been reviewing at the instruction of the department’s secretary, Janet Napolitano.

Ms. Napolitano and Michael Aytes, the acting leader of Citizenship and Immigration Services, should abolish the “widow penalty,” or Congress should do it for them. The law should protect immigrants who follow the rules. It should never let their dreams of citizenship be tragically derailed by death and an unthinking bureaucracy.”

Because the Administration chose not to abolish the widow penalty, Congress stepped up and did it for them. Surviving spouses and their families owe a debt of gratitude to Congressman Jim McGovern (D-MA), and Senators Bill Nelson (D-FL), Orrin Hatch (R-UT), and Robert Menendez (D-NJ) for their leadership on this issue, as well as their devoted staff Jay Lucey, Matt Nosanchuk, Matt Sandgren, and Kerri Talbot.

The House voted 307 to 114 last week to pass the Department of Homeland Security Appropriations Conference Report, of which the provision to end the widow penalty was a part. Today the Senate voted 79 to 19, passing the bill by a significant margin, and President Obama is expected to sign the bill into law.

FREQUENTLY ASKED QUESTIONS ON THE HISTORIC PASSAGE OF THE BILL TO END THE WIDOW PENALTY

PART ONE: WIDOW(ER)S OF AMERICAN CITIZENS AND THEIR CHILDREN

I am the widow(er) of an American citizen, how does the law affect me?

The law removes the two-year marriage requirement from the current law (Immigration and Nationality Act Section 201(b)(2)(A)(i)) that permits widows and widowers (“widow(er)s”) of U.S. citizens to file a self-petition for themselves and their children, while retaining the requirement to show a good faith marriage. The law does not alter the rights of widow(er)s who were married two years or more, who have been able to self-petition since 1990.

It will allow a widow(er) who was married less than two years at the time of the citizen spouse’s death to file an I-360 self-petition form within two years of the law’s passage. This self-petition can be filed concurrently (together) with an Application for Adjustment of Status to Lawful Permanent Resident (Form I-485) if the widow(er) is in the United States pursuant to a lawful entry. If the widow(er) is outside the United States, he or she can apply for an immigrant visa following the I-360 approval. The law does not require that a petition have ever been filed by the U.S. citizen spouse.

In cases where the widow(er) was already the beneficiary of an I-130 Petition for Alien Relative filed prior to the citizen petitioner’s death, it is anticipated that such I-130 petitions can be considered automatically converted to an I-360 self-petition. Current regulations already allow such auto-conversion for self-petitions. 8 C.F.R. 204.2(i)(1)(iv). It is anticipated that USCIS will apply those regulations to the new law, and allow for a previously denied I-130 petition (and accompanying I-485 application) to be reopened and approved as an I-360 petition.

Until such time as guidance is issued, however, be aware that there is a two-year window during which widow(er)s must file an I-360 following the law’s passage. If you are relying on the automatic conversion of a previously-filed I-130 petition, be aware that an I-360 should be filed within the two years following the law’s passage if guidance is not established by that time.

Does the law require me to obtain an Affidavit of Support Sponsor?

No. The law allows the widow(er) to self-petition, which removes the requirement that another person file an affidavit of support on behalf of the immigrant. Form I-864, Affidavit of Support, will not be required of self-petitioners. Widow(er)s must still prove they are not likely to become a public charge, based on a totality of factors listed under INA Sec. 212(a)(4)(B).

Does the law allow my children to be included?

Yes. Unmarried children of the widow(er) may be included on Form I-360 that is filed by the widow(er). Those children who are under the age of 21 years at the time the petition is filed should be eligible, as well as those children whose age determination is calculated under 201(f) of the Immigration and Nationality Act (Child Status Protection Act, or “CSPA”). CSPA allows children to qualify, even when over age 21, where the petition was filed before the child’s 21st birthday. CSPA calculations can be difficult, so competent counsel should be consulted.

If an I-130 was previously filed by the U.S. citizen on behalf of the child before the child’s 21st birthday, such petition may be considered automatically converted, and may be used to establish the child’s age for self petitioning purposes. This will be particularly helpful in cases where children have already reached age 21 at the time of the law’s passage. In cases where the child is still under 21 at the time of the law’s passage, however, it is urged that widow(er)s file the I-360 self-petition for themselves and their children in case of controversy over this auto-conversion and CSPA interpretation.

Can I receive benefits if I have remarried?

While the self-petition provision in the new law specifically requires that the widow(er) not have remarried, the provision dealing with “Surviving Relative Consideration” (see PART TWO below) does not. That section requires a petition to have been filed previously, so if no previous petition was ever filed before the death, remarriage prior to receiving permanent resident status may foreclose benefits. If a petition was filed on your behalf by your spouse, but you have now remarried, please review PART TWO of this FAQ.

Are there deadlines?

Yes. For those married less than two years at the time of the citizen’s death, the law permits the filing of a self-petition on Form I-360 within two years of the law’s enactment. Because the law was enacted October 28, 2009, the deadline is October 28, 2011. After this two-year period, a petition must be filed within two years of the citizen’s death. In cases where an I-130 was previously filed by the U.S. citizen, it can be considered to have automatically converted to an I-360 petition. Until guidance is issued, however, the two year deadline following enactment should be carefully reviewed and docketed by everyone affected.

For those married at least two years at the time of the citizen’s death, the law remains the same: an I-360 must be filed within two years of the citizen’s death, unless automatic conversion occurs as explained above. This new law does not change that deadline.

PART TWO: OTHER SURVIVORS

What other benefits to survivors does the law provide?

The law adds a new section of law, Sec. 204(l), to the Immigration and Nationality Act. The new section allows petitions that were filed prior to the death to be adjudicated despite the death of the petitioner or the principal immigrant in cases where the beneficiary or derivative beneficiary resided in the United States at the time of the death and continues to reside in the United States. The law covers the following survivors:

  • Immediate relatives (spouse, parent, minor child of a U.S. citizen)
  • Family Preference relatives (unmarried son or daughter of a citizen, married son or daughter of a citizen, spouse or child of a permanent resident, brother or sister of a citizen)
  • Employment-based dependents (derivative beneficiaries)
  • Refugee/Asylee relative petition beneficiaries
  • Nonimmigrants in “T” (victims of trafficking) or “U” (victims of crime) status
  • Asylees
Does the law require an Affidavit of Support?

Yes. Unlike the self-petitioning widow(er)s (see PART ONE), 204(l) requires an Affidavit of Support, Form I-864. The law amends INA 213A(f)(5) to provide for a substitute sponsor in the case of a petition that is being adjudicated under the new INA 204(l).

I resided abroad at the time that my relative died. Am I covered under this new law?

Only self-petitioning widow(er)s and their qualifying children (see PART ONE) are covered under the new law where the survivor resided abroad at the time of the qualifying relative’s death.

If the petition was approved prior to the qualifying relative’s death, however, current “humanitarian reinstatement” provisions found at 8 C.F.R. 205.1(a)(3)(i)(C)(2) may allow continued validity of the previously-approved petition, followed by consular processing of an immigrant visa. This would be the case even where the beneficiary was residing abroad.

Can I receive benefits if I have remarried?

While the self-petition provision in the new law specifically requires that the widow(er) not have remarried, the provision dealing with “Surviving Relative Consideration” does not.

Specifically, if a widow(er) resided in the United States at the time of the death of the qualifying relative and continues to reside in the United States, he or she shall have a petition or application for adjustment of status and any related applications adjudicated notwithstanding the death of the qualifying relative as long as the widow(er) “was…the beneficiary of a pending or approved petition for classification as an immediate relative…immediately prior to the death of his or her qualifying relative.” The clear language of the statute requires only that the person was an immediate relative immediately prior to the death. In the case of a widow(er) who remarries, this requirement is met despite the remarriage, provided a petition was filed prior to the death.

Can my petition still be denied?

The law gives the Secretary of Homeland Security some discretion to deny a petition if it is determined that approval would not be in the public interest. Most cases should be approved under this standard.

Will other related applications be adjudicated on the same basis?

Yes. New INA Section 204(l) provides that the petition, any application for adjustment of status, “and any related applications” be adjudicated notwithstanding the death of the qualifying relative. It is clear from this provision that it was the intent of Congress that such cases be treated humanely, and that the death of the relative should not form the sole reason for denial. Applications related to petitions and applications for adjustment of status include such things as waiver applications (Form I-212, Form I-601).

Under the new law, it should be possible for survivors (including spouses of American citizens, and all listed survivors) to be approved for waivers of inadmissibility notwithstanding the death of the qualifying relative, provided a petition was filed by the qualifying relative prior to the death, or in the case of a derivative, on behalf of the qualifying relative.

Can I rely on the information provided here for my individual case?

No. This information is of a general nature and cannot be substituted for advice of competent counsel in an individual case.

This information originally appeared on the Surviving Spouses Against Deportation SSAD. Reprinted with permission.


About The Author

Brent Renison represents employers and key employees with business-based immigration. He is the managing partner of Parrilli Renison LLC since 2007 and he was top rated by London based Chambers and Partners in 2008 and named by Law & Politics as a Super Lawyer for the third straight year. In 2007, he was presented with a Presidential Award in Orlando, Florida by the American Immigration Lawyers Association for Outstanding Achievement in Mentoring and Litigation on behalf of immigrant rights. That year he also received the Gerald H. Robinson Excellence in Advocacy Award from the Oregon AILA Chapter, and received the Portland Business Journal's Forty under 40 Award. Further information on the widow penalty, including the lawsuits, legislation and the effect of the new legislation can be found at the non-profit website for Surviving Spouses Against Deportation: www.ssad.org


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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