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Calling a Time-Out on the Widow Penalty

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August 2009
Calling a Time-Out on the Widow Penalty

Sharmila Bassouni* had been married 14 months when her husband was tragically murdered during a robbery at his convenience store. Sharmila and her twin 4-year-old daughters from a previous marriage were still grieving when she received a letter from U.S. Citizenship & Immigration Services (USCIS) in the mail, requesting that she and her husband appear for an interview—Sharmila was not a U.S. citizen, and was applying for permanent residency through her husband, who had been a citizen. When Sharmila contacted USCIS with the news of her husband’s death, she received a second notice in the mail: a denial of her petition. She was told to leave the U.S. with her daughters or risk being placed in deportation proceedings. Having lost her husband and the only father her daughters remembered, Sharmila was now being ordered to abandon the home they had made, the business they had built up as a family, and the country they loved, and take her children back to an uncertain future in Bangladesh.

Unfortunately, this is a common story in the United States: immigration advocates refer to this as the “widow penalty.” Lawyers for U.S. Immigration and Customs Enforcement (ICE) have long argued that if the U.S. citizen spouse dies within two years of marriage, the foreign spouse becomes a widow or widower, effectively annulling the right to be considered for residency, and thereby opening the door to deportation.

In June, U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano granted deferred action for two years to widows and widowers of U.S. citizens, as well as their unmarried children under 18 years old, who reside in the United States and who were married for less than two years prior to their spouse’s death.

“Smart immigration policy balances strong enforcement practices with common-sense, practical solutions to complicated issues,” said Napolitano. “Granting deferred action to the widows and widowers of U.S. citizens who otherwise would have been denied the right to remain in the United States allows these individuals and their children an opportunity to stay in the country that has become their home while their legal status is resolved.”

Secretary Napolitano also directed USCIS to suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse prior to the second anniversary of the marriage. Additionally, ICE must defer initiating or continuing removal proceedings, or executing final orders of removal against qualified widow(er)s and their eligible children.

USCIS will also consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law. DHS will soon issue guidance instructing the public on how to apply for this relief.

These directives apply regardless of whether the citizen filed a petition for the alien spouse before death. Deferred action suspends removal proceedings against a particular individual; it cannot resolve an individual’s underlying immigration status. Individuals granted deferred action may apply for work authorization if they can demonstrate economic necessity.

While Napolitano’s directive provides a short-term arrangement for widow(er)s of deceased U.S. citizens, legislation is required to amend the definition of “immediate relatives” in the Immigration and Nationality Act to permit surviving spouses to remain indefinitely after the U.S. citizen spouse dies, enabling them to seek permanent resident status. Now, advocates must use the time to continue lobbying Congress to act on two pending bills that would amend the law to permit the review of immigrants’ residency applications even if their spouses die before the two-year mark.

*Name Changed for Privacy Purposes

VISA PREFERENCE NUMBERS FOR AUGUST 2009

FAMILY        India        Pakistan/Bangladesh

1st 08Jan03 08Jan03

2A 15Jan05 15Jan05

2B 01May01 01May01

3rd 01Nov00 01Nov00

4th 22Dec98 22Dec98

EMPLOYMENT        India Pakistan/Bangladesh

1st Current Current

2nd 01Oct03 Current

3rd Unavailable Unavailable

Other Unavailable Unavailable

4th Current Current

5th Current Current


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