New Benefits for Surviving Family Members and an End to the “Widow Penalty”
On October 28, President Obama signed a new law ending what is known as the “widow penalty” and providing new benefits for surviving family members. This law was passed by the House of Representatives in June and by the Senate in July.
What is the widow penalty?
If a U.S. citizen married a foreign spouse and wanted to sponsor this new spouse for a green card, the U.S. citizen would need to file Form I-130, Petition for Alien Relative, and the foreign spouse would need to file Form I-485, Application to Register Permanent Residence or Adjust Status. If the U.S. citizen died after filing the petition and the USCIS had not yet decided on the petition and application, the spouse was forced to leave the U.S. if the couple was married for less than two (2) years.
What changes are in effect with the new law?
Under the new law, foreign spouses can self-petition for their green cards if their U.S. citizen spouses die and if the marriage lasted less than two (2) years. Widows who were married to U.S. citizens for longer than two (2) years were already able to self-petition under existing laws. All self-petitioners will be required to show that the marriage was entered into in good faith, but the requirement to be married for more than two (2) years has been removed from the law. Widowed spouses can also petition for permanent residency for their children if the children are unmarried and under age 21.
How do I take advantage of the new law?
Recently widowed foreign spouses can now file Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant with the USCIS, even if they were married for less than two (2) years. This petition can be filed on its own or concurrently with an adjustment of status application. Widow(er)s currently outside the U.S. can file Form I-360 on its own and process their immigrant visa at a consulate abroad.
What other changes are a result of the new law?
The law also adds a new part to INA Section 204 that allows for the following types of petitions to be considered if they are filed prior to the death of a petitioner, but are still pending when the petitioner dies.
In these cases, beneficiaries will need to find a substitute sponsor to complete and file an Affidavit of Support.
President Obama Lifts HIV Travel Ban
HIV-positive people are no longer banned from entering the United States. President Obama has finalized an order overturning a travel and immigration ban that was in effect for twenty-two years. The process of overturning the ban began during the administration of George W. Bush.
"If we want to be the global leader in combating HIV/AIDS, we need to act like it," said President Obama at a White House reception.
The ban has made it difficult for the United States to hold international conferences on HIV and AIDS because HIV-positive researchers and activists would not be able to attend. There has been no such conference in the U.S. since 1990. Health experts have long pointed out that the ban had no scientific basis and enforced discrimination faced by those who are HIV positive. The ban was implemented when much less was known about how the HIV virus spreads.
Comprehensive Immigration Reform on the Agenda
IN THIS ISSUE
H-1B Cap Update
USCIS recently released an updated count of visas still available under the H-1B program for Fiscal Year 2010. The agency confirmed that as of December 4, 2009, approximately 61,100 H-1B cap-subject petitions had been filed. The separate cap for advanced degree holders has already been met. This means that there are approximately 3,900 H-1B visas remaining.
Proposed Addition to Census Questionnaire is Rejected
The Senate recently rejected Utah Senator Bob Bennett's proposal to include a question about citizenship in the 2010 census. Senator Bennett's goal in making this proposal was to remove non-citizens from counts that determine the amount of representation states receive in the House of Representatives. Many groups immigrant groups were concerned that such a question would discourage non-citizens from participating in the census or that this information could be used to target non-citizens for immigration violations or deportation.
Settlement Reached in Lawsuit Over FBI Name Checks
In 2007, a number of organizations representing immigrants' rights sued the government over unreasonable delays caused by FBI name check procedures. Many immigrants' had their citizenship applications delayed for years with no way to track or expedite the process. A settlement was recently reached in one of these lawsuits, filed in Santa Ana, CA, and affecting pending citizenship applications in southern California. The settlement states that pending name checks must be processed within six months. USCIS is supposed to adjudicate citizenship applications within 120 days after the naturalization interview takes place, but the addition of the FBI name check procedures resulted in massive backlogs.
Deadline for 2011 Diversity Visa lottery was November 30, 2009
The deadline to enter the 2011 Diversity Visa lottery has passed! Entries for the lottery should have been received by noon, Eastern Standard Time on Monday, November 30, 2009. The Diversity Visa lottery program makes visas available through a random drawing to foreign nationals from countries that have low rates of immigration to the United States. Individuals may apply for the lottery if they meet the specified requirements and are from a qualifying country.