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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