[Blog]

Before this law was enacted, if a United States citizen spouse died within two years of marriage, the ability of the alien spouse to obtain immigration benefits ended. The  new law allows for widows and widowers, as well as their unmarried children under the age of 21, to self-petition for permanent residence regardless of the amount of time the couple had been married, provided they demonstrate that the marriage was entered into in good faith, and provided they file the self-petition within two years of the death of their spouse. Also, the new law allows the beneficiaries or derivative beneficiaries of immigration benefits to continue to qualify for benefits, including some non-immigrant visa categories, after the death of the primary beneficiary or applicant.

The passage of this new law was necessitated by court action, as three federal appeals courts disagreed with the government’s position, finding that the way the prior law was written allowed for the term “spouse” to include “surviving spouses,” as it does in its common usage.  Because of the split in federal court treatment on this issue, it may have been ripe for review before the Supreme Court, had Congress not enacted this change, to remove the widow penalty altogether.  This new law also follows a drastic change in policy announced this summer as a way to ameliorate the unfair treatment widows were receiving.

On June 9, 2009, a landmark change in U.S. immigration policy related to the “widow penalty” was issued in a press release from Department of Homeland Security Secretary Janet Napolitano.  In it, she described a complete reversal on the part of the government to allow for some benefits to spouses of U.S. citizens who pass away before they have been married for two years, this also applied to their single children who are under 18 at the time of the marriage.  The way the law previously worked, was that an alien who was married to a U.S. citizen could be the beneficiary of an immigrant visa petition, and on that basis (without having to wait for a visa number to become available) could apply for a green card.  However, the law at the time specifically stated that where the U.S. citizen spouse dies, the foreign spouse can only benefit based on the marriage if they had been married for two years prior to the death of the citizen, they were not at that time legally separated, and the citizen actually filed an immigrant visa petition on their behalf.