Understanding the Injustice that is the Widow Penalty?

Kuck Baxter Immigration Blog Leave a Comment

Many of you may have seen a 60 Minutes report on what is being called the Widow Penalty. The following gives some background into the immigration process and how the widow penalty comes into play.

When a U.S. citizen marries a non-citizen, the citizen is able to file a petition for that non-citizen to receive “immediate relative” status and be processed for permanent resident (green card) status. The immigration process always takes many months to complete. First, the couple files the necessary paperwork, and then waits patiently for the government to process the application. Generally during the processing the non-citizen spouse will receive work authorization and travel permission. Then, if an applicant is given resident status prior to the second wedding anniversary, the permanent resident status is called “conditional” and referred to as “Conditional Permanent Resident” (CPR) status. This status is generally the same as permanent resident status, with the condition that the couple files a form (I-751) after two years to show the continuing validity of the marriage in order to have the condition removed. If the marriage has ended for some reason before filing the I-751, the CPR can file the I-751 alone and submit evidence proving that the marriage was: terminated through divorce but was entered into in good faith; show abuse; or inform USCIS that the citizen spouse has died. This is the case even if the marriage never reached the two year mark.

Where does the “widow penalty” come in? The widow penalty comes into play when the citizen spouse dies before being married for two years, or before USCIS adjudicates the applications? The government takes the position that if the death occurs before the government acts on the couple’s applications (CPR status), even if the marriage is one day short of the two year wedding anniversary, the application can be denied because the applicant is no longer a “spouse.” This makes no sense because in a case that sees quick adjudication to CPR status, the government allows the CPR to file to remove the condition despite the death, even if the marriage only lasted a short time after CPR status was obtained. In a nutshell, the non-citizen spouse is unfairly penalized because his or her spouse died before the notoriously slow government could timely adjudicate their petitions. This unfair distinction drawn by the government has given rise to litigation striving to end the widow penalty in several circuit courts and seems destined for the U.S. Supreme Court.

For more information on the widow penalty, including current litigation and how to get involved in stopping the government from applying their incorrect and unjust interpretation of the law, please visit ssad.org.

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Kuck Baxter Immigration

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