Newsletter   |   December 2009

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.

The old stance taken by the USCIS was that the Petition for Alien Relative is the U.S. citizen's petition and that this petition ends when the petitioner dies. With no underlying petition, there was no basis for the foreign spouse to adjust status to permanent resident and therefore removal proceedings were initiated. This is referred to as the “widow penalty.” This interpretation of the law unfairly led to the removal of recently married foreign spouses whose green card paperwork was not processed before their U.S. citizen spouse died. These spouses can stay in the U.S. under the new law.

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.

This law is retroactive. If a U.S. citizen spouse recently died and made no steps to establish permanent residency for a foreign spouse, the spouse must file Form I-360 within two years of the passage of this law (by October 28, 2011). For cases going forward, widow(er)s must file Form I-360 within two years of the death of the U.S. citizen spouse. If a U.S. citizen spouse filed a Petition for Alien Relative on behalf of a foreign spouse and this application is currently pending with USCIS, nothing needs to be done at this time. USCIS has not issued implementing regulations as of yet, but it is likely that when it does so, all existing Petitions for Alien Relatives that fall under this category will be converted to self-petitions. It is important to keep watching for new developments in case the implementing regulations require foreign spouses in this situation to take some action before October 28, 2011.

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.

• Immediate relatives (spouse, parent, minor child of a U.S. citizen)
• Family preference relatives (unmarried son or daughter of a citizen, married son or daughter of a citizen, spouse or child of a permanent resident, brother or sister of a citizen)
• Employment-based dependents (derivative beneficiaries)
• Refugee/Asylee relative petition beneficiaries
• Nonimmigrants in “T” (victims of trafficking) or “U” (victims of crime) status
• Asylees

In these cases, beneficiaries will need to find a substitute sponsor to complete and file an Affidavit of Support.

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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.

The ban has also separated families. People with the HIV virus were not able to apply for immigration benefits unless they qualified for a waiver, which was not easy to obtain.

"We are one of only a dozen countries that still bar people with HIV from entering our own country," stated Obama. Other countries that bar travel and immigration of HIV-positive people include China, Iraq, Libya, Moldova, Oman, Qatar, Russia, Saudi Arabia, South Korea and Sudan.

The order overturning the ban will take effect on January 4, 2010.

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Comprehensive Immigration Reform on the Agenda
for Early 2010

The financial crisis and downturn in the economy has pushed comprehensive immigration reform to the back burner this year. President Obama has stated that comprehensive immigration reform will be addressed in early 2010.

In October, Congressman Luis Gutierrez (D-IL) outlined his proposal for immigration reform. He has been working with various immigrant groups and other members in the House of Representatives to identify immigration issues to be addressed in 2010.

His proposal includes a pathway to legalization for undocumented workers, updated enforcement at the border, revamping the employment eligibility verification system, and protecting U.S. workers. He stated, "Family is the bedrock of our society, and immigration reform must support strong, united families and treat all immigrant families fairly and equally. Right now, our broken immigration system keeps too many American families apart for years and even decades, when they have done everything legally."

Representative Gutierrez remarked that it is important to strengthen the Development, Relief and Education for Alien Minors (DREAM) Act. "We all want a country that is better educated, better motivated and better prepared for the future. My plan will strengthen the DREAM Act, making it quicker and easier for students who grew up in America and know no other home to fully participate in our society. Immigrants brought here as children should not be punished with fines or other means; rather, they should be fully integrated into our society as the Americans they truly are-and as quickly as possible."

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Military Families Act Introduced in the Senate

A group of Democratic senators introduced the Military Families Act in mid-November. Under this act, the federal government can grant permanent residency to family members of those serving in the military, including in cases when the military personnel loses his or her life while serving in the military. The act would apply only to immediate relatives of those in the military. Immediate relatives are parents, spouses or children.

"A grateful nation shows gratitude for members of the military not just through statements and ceremonies on Veterans Day, which are important, but also in how we take care of military families," said Senator Bob Menendez (D-NJ), one of the senators who introduced the bill.

Green card holders and some non-immigrants are eligible to serve in the U.S. Armed Forces. The federal government has already expedited the road to citizenship for military personnel, but these changes did not apply to their family members if the military personnel were killed in action. The Military Families Act seeks to promote family unity and recognize the contribution made by non-citizens to the U.S. military.

The Military Families Act also contains a provision granting permanent residency to the sons and daughters of Filipino immigrants who served in World War II. Their permanent residency has long been deferred due to immigration quotas applying to Filipinos.

A recent report released by the Immigration Policy Center confirms that 114, 601 foreign-born individuals were serving in the U.S. military as of June 30, 2009. 10,505 members of the military were naturalized in FY 2009.

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