Widows Penalty Ends: Surviving Spouses Married Less Than Two Years May Become Permanent Residents

Prior to October 28, 2009, U.S. immigration law triggered the deportation of surviving immigrant spouses of American citizens who die before they have been married two years.

There are two parts to the new law:
I.  The new law would allow the survivors to submit petitions seeking permanent residence (green card) even when the citizen spouse dies before two years of marriage.

II.  The new law also provides benefits to "survivors" in various types of immigration cases where either the petitioner or the principal beneficiary dies before the other family members are able to become permanent residents.

What is the Widow Penalty?
Prior to the enactment of Public Law 111-83, surviving spouses fell into 2 categories:

1. Those whose U.S. citizen spouses died after their marriage had existed for at least 2 years; these surviving spouses were eligible to self-petition to become lawful permanent residents of the U.S.

2. Those whose U.S. citizen spouses died before the marriage has existed for at least 2 years; these surviving spouses were subject to the “widow penalty.” They faced automatic denial and threat of deportation from the U.S.

Who Benefits from the New Law?

1.Widow(ers) of U.S. citizens and their children

The 2-year marriage requirement has finally been removed from Section 201(b)(2)A)(i) of the Immigration Nationality Act (“INA”). Thus, the surviving spouse, and his/her children, may now self-petition by filing a Form I-360 with USCIS.

If the applicant is in the U.S., s/he may also concurrently apply to adjust to permanent resident status (green card) by filing a Form I-485 with USCIS.

For applicants who are outside the U.S., s/he can apply for an immigrant visa following the approval of the I-360 petition.

2. Other Survivors
The new law added a new section, Section 204(l) to the INA. This new section allows the following aliens to have their petitions or green card applications to be adjudicated notwithstanding the death of the qualifying relative, provided that the following conditions are met:

a) The petition must have been filed prior to the death of the qualifying relative;
b) The beneficiary or derivative beneficiary resided in the U.S. at the time ofthe death of the qualifying relative;
c) The beneficiary or derivative beneficiary continues to reside in the U.S.

The new law provides benefits to "survivors" in various types of immigration cases where either the petitioner or the principal beneficiary dies before the other family members are able to become permanent residents.

The other survivors in this group are: 

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

Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law for North Carolina clients and for clients throughout the United States, and the world because immigration law is a federal law practice not limited attorneys in a particular state.

Gerald Goulder has been a licensed attorney and counselor at law for 30 years. His practice is exclusively immigration, visa and citizenship law.  He has broad experience with family sponsored green cards, naturalization and citizenship, employer sponsored green cards, employment and work visas like H-1B visas and other nonimmigrant visas, and I-9 employment eligibility and employer sanctions laws.

His broad professional background includes working as a special state prosecutor, owning and operating a business, serving onboards of non-profit organizations, religious organizations and private corporations, and taking political leadership roles.  Mr. Goulder has also worked as an Assistant Attorney General of Ohio, and Ohio Special Prosecutor in law enforcement and prosecution, and he was appointed Special Counsel to the Attorney General of the State of Ohio. Although his private practice initially involved commercial, business, and corporate/commercial real estate matters, Gerald Goulder, managing partner of Goulder Immigration Law Firm, is a North Carolina immigration lawyer with clients throughout the world, guarantees personal service to every client.Clients receive one-on-one direct access to immigration attorney Gerald Goulderon phone calls, emails, or letters. If you are seeking guidance, experience and knowledge of immigration and visa laws involving family-based oremployment-based permanent residence and green cards, visas, or citizenship, donot hesitate to contact Goulder Immigration Law Firm.