USA IMMIGRATION NEWS

New Legislation Aims to End 'Widow Penalty'

Friday, 3 July 2009

On June 11th, Senators Menendez (D-NJ), Gillibrand (D-NY) and Leahy (D-VT) introduced the Orphans, Widows and Widowers Protection Act (S. 1427). This bill will provide a remedy for Orphans, Widows and Widowers who suffer immigration-related hardships due to the death of a sponsoring relative.

Under current immigration regulations widow(er)s, and their children, may apply for a green card if the widow(er)s were married to their deceased spouse for at least two years prior to his/her death. This leaves individuals who were married to their deceased U.S. citizens for less than two years without a remedy to gain permanent residence through that relationship. Therefore, under the current regulatory scheme, if the U.S. citizen spouse dies before the United States Citizenship and Immigration Service adjudicates the marriage based green card application and if the marriage is less than 2 years old, the surviving spouse automatically ceases to be a spouse and is rendered deportable. This is commonly referred to as the 'Widow penalty'.

In addition, Secretary Napolitano introduced a new interim relief that granted deferred action for two years to widow(er)s of U.S. citizens, and their unmarried children under 21 years old, who were married for less than two years to their now deceased U.S. citizen spouse. However, this relief does not confer any legal status unto these immigrants; it merely stays the deportation proceedings for two years.

If enacted, this new legislation would confer many benefits that these orphans and widow(er)s did not have previously. For instance, the bill would allow orphans, parents and spouses of United States citizens to continue their applications through the family immigration system in cases where the citizens' or residents' relative died if the individual self-petitions are filed within two years. In addition, it will promote efficient naturalization of widow(er)s by allowing the surviving spouse to continue with a naturalization application as long as the deceased spouse was a citizen of the United States during the three years prior to filing.

More recently, on June 23rd, the Fairness to Surviving Spouses Act of 2009 (S. 815/H.R. 1870) was introduced by Senator Bill Nelson (D-FL) and Representative Jim McGovern (D-MA). If passed this legislation would halt the deportation of individuals whose pending applications for green cards are not approvable because their U.S. citizen spouse died within the first two years of marriage.

The American Immigration Lawyers Association (AILA) announced their support for the new bill saying:

"We applaud Senator Nelson and Congressman McGovern for championing this cause and hope that together we can end the immigration widow penalty"

For additional information regarding the above or for assistance with your US visa application please visit migrationexpert.com.