The Widow's Penalty

Current immigration law requires deportation of the alien spouse of a U.S. citizen if their marriage does not last past two years.  This law was intended to prevent sham marriages where a non-citizen would marry a U.S. citizen to quickly gain legal residency and then just as quickly get a divorce.  Now, the United States Citizenship and Immigration Service, USCIS, argues they are required to deport aliens whose spouse dies within two years of being married.

This law has become known as “the widow’s penalty” and has been the subject of numerous lawsuits against the USCIS.  The argument revolves around who is an immediate relative of a deceased person.

When a non-citizen marries a citizen, the citizen spouse may “sponsor” their alien spouse for residency by filing form I-130 “Petition for Alien Relative.”  Form I-130 may only be submitted by an “immediate relative” such as a spouse, parent or child.  The government is now arguing that at death spouses are no longer “immediate relatives” and thus, the petition must be denied.  If the application has been approved prior to the death however, the USCIS will not rescind it because of a spouse’s death.

In the one case that has been ruled on by a Circuit Court of Appeals, second highest to the Supreme Court, the San Francisco based Ninth Circuit ruled that a person does not lose “immediate relative” status with their spouse simply because their spouse dies.  To take advantage of that ruling a class action lawsuit has been filed in Los Angeles to force the USCIS to cease all similar deportations.

Other cases that have been filed against the USCIS include a citizen who died in Iraq while working as a Department of Defense security contractor, and another who died while saving two boys from drowning in San Francisco and was posthumously awarded a Coast Guard heroism medal.  Those two men died protecting others and now because of their sacrifice their widows are being deported, one of whom must also take her son who is a citizen.  These women are now forced to resort to filing a lawsuit to stay in the country.

Because the legal issue involves the interpretation of a statute Congress can fix this mess by simply changing the statute.  Unless Congress decides to change the law’s ambiguous language the issue is destined to be settled in the courts.  However, because of the current political climate, changing any aspect of immigration law has proven difficult.  An amendment was introduced this past Congress but failed when the overall immigration reform bill failed. 

Congress has acted though to speed up the immigration process for non-citizens who are serving in the military.  This shows that Congress does realize that persons who make extraordinary sacrifices deserve more support from their adoptive country.  Immigration policy is now a touchy subject, but supporting the troops has always been seen as an obligation.

The Ninth Circuit ruling does not guarantee that these women will be able to stay.  What it guarantees is that when processing applications the USCIS cannot unilaterally deny them because their husbands made the ultimate sacrifice, leaving them now widows.

For more information on the widow's penalty, contact a qualified immigration attorney in your area today.

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