On Jun 13 2009 by William A. Stock

New DHS Policy Addresses “Widow Penalty”

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 that allows some benefits to the spouses of US citizens, who are penalized under current law if the U.S. citizen passes away before the couple has been married for two years.

Under current law, a foreign national who is married to a U.S. citizen can be the beneficiary of an immigrant visa petition, and on that basis can apply for a green card. The U.S. citizen can also petition for children who are unmarried and under the age of 18 in the same manner. However, the law provides that the widow/widower of a U.S. citizen 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. The rule is the same for children. The law allows for those married for more than two years prior to the death of their spouse to self-petition for an immigrant visa and then green card.

Litigation in several circuit courts has challenged this disparate treatment on behalf of widows whose US spouse passed away – some even killed in the line of duty – during DHS adjudication delays, and courts have held that DHS’s interpretation was not reasonable.  The new policy partly implements these court decisions by providing some relief to these innocent spouses.

Initially, Secretary Napolitano proposes a form of relief called “deferred action,” which is a decision not to put the widows through deportation proceedings, enabling them to remain in the United States and even to seek employment authorization. The government is not requiring that the U.S. citizen spouse have actually filed immigration documents on their behalf for these benefits to attach.

As a policy matter, Secretary Napolitano explained that the government would be open to considering widows and widowers of U.S. citizens for humanitarian reinstatement of their previously denied or revoked visa petitions. That is, if the U.S. citizen spouse did file immigrant petitions on their behalf, and under the prior interpretation of the law the government denied the petition or revoked it after first approving, then Citizenship and Immigration Services will consider reinstating those petitions on humanitarian grounds.

For years now, lawyers across the country have been fighting back against the narrow construction of the law which did not allow for widows and widowers to benefit from their marriages to U.S. citizens. As Secretary Napolitano’s press release notes, the position of the government is that the law does not currently allow for widows married less than two years to continue petitions by the spouses or to self-petition, and Congress would need to amend the law to resolve this issue. There are two current pieces of legislation that would do just that, Senate bill 815 introduced by Senator Bill Nelson, a Democrat from Florida, and House bill 1870 introduced by Representative Jim McGovern, a Democrat from Massachusetts.

Additionally, three of four federal appeals courts to have decided the issue have disagreed with the government’s position on this issue, finding that the way the law is written allows 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 be ripe for review before the Supreme Court if Congress does not enact changes to the way the law is currently written to remove the widow penalty altogether.