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US Immigration and Visa Matters: The Widow's Penalty

By Ben Hart

Republish: EasyPublish™ Published: 05Nov2009 Word count: 518 Viewed: 523 time(s) Get Free Content For Your Site

The following article explains the so-called "Widow's Penalty." Inconsistencies in the United States Immigration and Nationality Act have the effect of placing widows and widowers of United States Citizens in untenable positions should the American spouse pass away before some crucial phase of the Immigration process.

United States Immigration is a deep area of law as it is highly statute driven. Certain aspects of American Immigration can be very confusing and one of the most confusing issues deals with two things that few bi-national couples wish to address: Death and Loss of Immigration Benefits.

In cases involving marriage to a United States Citizen, for a foreign fiancee to eventually obtain unconditional permanent residence in the United States they must pass through a series of adjudications for the Immigration authorities to ensure that the marriage is not a sham. In a way, scrutiny of the couple first occurs when a United States Citizen files an I-129f application for a K1 fiance visa. Upon preliminary approval, the file will be sent to the US Embassy or Consulate with jurisdiction over the foreign fiancee's residence. The Consulate will interview the applicant and if satisfied that the marriage is genuine, they will issue a K1 visa. The foreign fiancee will then pass through an inspection point at a port of entry in the United States where Customs and Border Protection officers will make another determination as to admissibility.

After being lawfully admitted to the USA, the foreign fiancee will have 90 days to marry the American Citizen and adjust status to permanent residence. In most cases, the marriage is executed and the foreign spouse is approved for adjustment, thereby making her a conditional lawful permanent resident. After two years in conditional permanent resident status, the foreign spouse, along with her American husband, will need to file to have the conditionality of residence lifted and thereby make her an unconditional lawful permanent resident. The "Widow's Penalty" can come into play before either the approval of the adjustment of status or the approval of the petition to lift of conditions of residence. If the American Citizen spouse dies prior to the approval of either of these petitions, then it can create a difficult situation for the foreign spouse because the applicant no longer meets the requirement for a lifting of conditions or adjustment. Therefore, the foreign widow could fall out of status because they are no longer married to an American. US Courts have attempted to address this problem by interpreting statutes to allow foreign spouses to remain in the United States. The Department of Homeland Security has also taken measures to defer inspection of foreign widows and widowers in order to provide a sort of amnesty for those placed in such a difficult position.

This issue has not been fully dealt with as there are many conflicting interpretations of the current law. In general, the mood of the courts seems to be in favor of doing away with this so-called penalty because implementing the law in its current form leads to unfair outcomes for immigrants already present in the USA.

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