Four States Help Promote the Potential End of the Widow Penalty

Published: 14/10/2009

Four States Help Promote the Potential End of the ‘Widow Penalty’

The US immigration community has long been split over the fairness, and possibilities for moving forward fairly, of the so-called ‘widow penalty’.

This situation arises when the widow or widower of an American citizen, and their children, apply for a green card. Currently, if they are unable to prove that the marriage was bona fide for at least two years prior to their spouse’s death, wit relatively unclear guidance as to have that ‘proof’ is obtained, the widow, or widower and their children are not able to continue their green card application.

This, of course, means that the remaining family is no longer able to reside in the US. This is what’s referred to as the ‘widow penalty’.

While we are all keen to ensure US immigration is fair and honest, the ‘widow penalty’ highlights just how very painful such issues can be. A recent development across District Courts in Florida, Maryland, Missouri and Texas, however, is bringing some potential positivity to this rather depressing situation, especially as several lawsuits challenging the policy have recently succeeded, bringing with it a renewed appreciation for its injustice.

In these states, the term ‘immediate relative’ is being accepted within the relevant ‘widow penalty’ cases, referring to the spouse of a US citizen as soon as they marry, even if the spouse’s death occurs prior to the second wedding anniversary.

This is further defined in the US statute as: “For purposes of this subsection, the term “immediate relatives” means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. In the case of an alien who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen’s death and was not legally separated from the citizen at the time of the citizen’s death, the alien (and each child of the alien) shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen’s death but only if the spouse files a petition under section 204(a)(1)(A)(ii) within 2 years after such date and only until the date the spouse remarries. 3/ For purposes of this clause, an alien who has filed a petition under clause (iii) or (iv) of section 204(a)(1)(A) of this Act remains an immediate relative in the event that the United States citizen spouse or parent loses United States citizenship on account of the abuse.”

Although this definition is still open to interpretation, the District Courts of Florida, Maryland, Missouri and Texas have ruled in favour of the ‘immediate relative’ aspect, where all aspects of the marriage of the applicant in questions shows that the marriage was legitimate. This is giving hope to many, especially as US Department of Homeland Security Secretary Janet Napolitano has extended interim relief, with deferred action for a number of applicants affected by the ‘widow penalty’. We will watch with interest to see if the ‘immediate relative’ term is more widely accepted in the near future.

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