On Wednesday, October 28, 2009, President Obama signed into law H.R. 2892, the “Department of Homeland Security Appropriations Act, 2010” which provides FY 2010 appropriations for the Department of Homeland Security. Title V, Section 568 of Public Law Number 111-83 contains three very important immigration-related provisions:
• Subsection (a) extended the Special Immigrant Nonminister Religious Worker Program and other immigration programs from September 30, 2009 until September 30, 2012.
• Subsection (b) also extended the Conrad State 30 J-1 Visa Waiver Program from September 30, 2009 until September 30, 2012'.
• Subsection (c ) ended the “widow penalty”
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. Even the USCIS acknowledged that “no avenue of immigration relief exists for the surviving spouse of a deceased U.S. citizen if the surviving spouse and the U.S. citizen were married less than 2 years at the time of the citizen’s death” [see USCIS Director Neufeld’s 9/4/2009 Memorandum entitled “Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children].
October 28, 2009 was a historic day for victims of the widow penalty. The “Surviving Spouses Against Deportation” (SSAD), a non-profit organization which was formed to end the widow penalty, jubilantly declared on its website – www.ssad.org – “We ended the widow penalty”. SSAD’s website contains a chronological history about the fight to end the widow penalty, which began with the case of Carla Arabella Freeman in 2004. When USCIS denied her green card application on May 17, 2004, she started the long fight to be allowed to stay in the U.S. More lawsuits were filed by other victims of the widow penalty.
While their cases slowly wound through the court system, these victims of the widow penalty also sought assistance from Congress. They were fortunate to find support from Congressman Jim McGovern (D-MA) and Senators Bill Nelson (D-FL), Orrin Hatch (R-UT), and Robert Menendez (D-NJ) who spearheaded the immigration amendments to H.R. 2892.
Who benefits from Section 568(c) of Public Law 111-83?
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., he/she may also concurrently apply to adjust to permanent resident status by filing a Form I-485 with USCIS. For applicants who are outside the U.S., he/she 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 of the death of the qualifying relative
c) The beneficiary or derivative beneficiary continues to reside in the U.S.
Who belongs to this group of “other survivors”?
• 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
SSAD’s pro bono counsel Attorney Brent Renison has posted a Frequently Asked Questions (FAQ) on their website – see http://www.ssad.org/images/Legislation_Passed_FAQ.pdf.
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. However, as always, the law is very complex. We must wait for USCIS and the Department of State to issue regulations to implement this law. Like any other immigration matter, this could take years before we see any regulations from these government agencies.
Comments