USA IMMIGRATION NEWS

Obama Signs Law to End Widow Penalty

Wednesday, 4 November 2009

On October 28, 2009, President Obama signed into law the FY10 Department of Homeland Security Appropriations bill (P.L.111-83), which among other things, invalidates the 'widow penalty'.

Prior to the enactment of this new law, widow(er)s and their children who were married to their U.S. citizen spouses for less than two years were without a remedy to gain permanent residence through that relationship since they were not considered "immediate relatives" under INA Section 201(b)(2)(A)(i). Therefore, if the U.S. citizen spouse died before the USCIS adjudicated the marriage-based green card application, and if the marriage was less than 2 years old, the surviving spouse automatically ceased to be considered an "immediate relative" spouse resulting in the automatic termination of said pending green card application. This harsh result was commonly referred to as the 'widow penalty'.

The appropriations bill implements two new measures benefitting widow(er)s and other surviving relatives. First, the law changes the definition of "immediate relative" spouse eliminating the two (2) year marriage requirement, thus ending the 'widow penalty'. Second, it grants new rights to certain surviving relatives. The law does not affect the rights of widow(er)s married to their U.S. citizen spouse for more than two years.

The first measure of the new law allows widow(er)s who have been married for less than two years to self-petition for permanent residence utilizing Form I-360 regardless of if the U.S. citizen spouse filed an I-130 petition. Widow(er)s utilizing this remedy are subject to a deadline and must file the I-360 petition within two years of the enactment of the new law, mainly October 28th, 2011. If the U.S. spouse filed an I-130 petition prior to their death, then the I-130 petition will be automatically converted to an I-360 petition. To qualify for this benefit the foreign national must satisfy the following requirements:

• The foreign national's United States citizen spouse died before the date of the enactment of the Act;
• The foreign national and the citizen spouse were married for less than 2 years at the time of the citizen spouse's death; and
• The foreign national's has not remarried.

The second measure of the law allows petitions filed prior to the death of the U.S. relative to be adjudicated, even after the death of the qualifying U.S. relative, where the beneficiary or derivative beneficiary resided in the U.S. at the time of the death of the U.S. relative and continues to reside in the U.S. Further, this provision of the law does not only apply to immediate relatives (i.e. spouse, parent, minor child of a U.S. citizen), it also applies to the following survivors:

• Family Preference relatives (i.e. 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 (i.e. derivative beneficiaries)
• Refugee/Asylee relative petition beneficiaries
• Nonimmigrants in "T" (i.e. victims of trafficking) or "U" (i.e. victims of crime) status
• Asylees

In contrast to the first provision, the second remedy does not punish widow(ers) who have remarried, provided that the widow(er) was considered an immediate relative prior to the U.S. relative's death.

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