Immigration Q&A: The widow penalty
Break for Widows
Though this column has never received a question from a surviving spouse of a deceased U.S. citizen whose marriage was less than two years old at the time of death, there have been several cases reported in the national media of a so-called “widow penalty” in U.S. immigration law preventing the surviving spouse from becoming legal here.
The widow penalty prevents widow(er)s of deceased U.S. citizens, who were married less than two years at the time of the U.S. citizen’s death, from becoming permanent residents based on the marriage.
A number of heartfelt cases ensnaring widows have made the news. One that comes to mind is a report I read earlier this year in The New York Times about a Jamaican woman whose U.S. husband lost his life in the Staten Island Ferry tragedy of 2003. They were married for only eight months. Because of the widow penalty, her application for permanent residency based on her marriage to a U.S. citizen was denied.
In June, Homeland Security Secretary Janet Napolitano announced that the Department of Homeland Security, which houses USCIS, would grant deferred action to surviving spouses of U.S. citizens who died before the marriage was two years old. This action, according to USCIS, is “an exercise of prosecutorial discretion not to pursue removal from the United States of a particular foreigner for a specific period. Deferred action is not intended to be a permanent remedy for this situation; rather it is a temporary discretionary solution.”
Under deferred action, USCIS will not deny petitions for permanent residency based on a marriage to a deceased citizen that was less than two years old. But nor will the agency approve the petition. Deferred action is meant to be a type of band-aid solution until Congress gets around to dealing with the widow’s penalty – something which may, or may not, happen. Eligible cases will be deferred for two years, according to Napolitano, which gives Congress another two years to take a look at an issue that has ensnared widow(er)s through no fault of their own.
For more detailed information about deferred action as it relates to eligible widow(er)s, visit www.uscis.gov.
New Queens office
GOOD news for residents of Brooklyn and Queens who have dealings with the USCIS -- the agency has just announced the opening of a new field office in Long Island City that will service residents of both boroughs.