On October 28, 2009 President Obama signed a new Department of Homeland Security Appropriations bill which contained a provision to eliminate the “widow penalty.”
In the past, if a foreign national was married to a US citizen who passed away prior to the couple’s second anniversary and before the foreign national received a green card, the surviving spouse had no immigration relief. The devastating effect this “widow penalty” had on grieving families has recently received a significant amount of media attention and many federal lawsuits had been filed attacking the provision. The elimination of the “widow penalty” is a wonderful step towards making the American immigration system more humane.
The new law removes the requirement pertaining to the length of the marriage. A surviving spouse and their children will now be able to file a self-petition even if the US citizen passed away prior to the second anniversary of the marriage. The applicant must also fulfill the other requirements for a widow self-petition which remain the same.
Additionally, the new law provides relief for many individuals who did not meet the requirements of the “widow penalty” provisions due to having been married for less than two years at the time the U.S. citizen died. Applicants who did not previously qualify now have two years from the date of the enactment of this new law to file an I-360 immigrant petition. After October 28, 2011, the widow(er) petitions must be filed within two years of the qualifying spouse’s death.
Republican Senator Orrin Hatch introduced the amendment to the appropriations bill which eliminated the widow penalty and the amendment passed unanimously in the Senate. We hope that this bodes well for bipartisan support of broad-based immigration reform and other smaller measures aimed at fixing a broken system.
For more information regarding the new law concerning widow(er)s of U.S. citizens and to see if you qualify to file under this new law, please contact our office at (212) 748-3335 to schedule a consultation.