Before 2009, the “widow penalty” law was enforced in the United States, calling for the deportation of any foreign national whose marriage to a U.S. citizen was prematurely ended by death before the couple’s two-year anniversary. As a process that existed for years, the widow penalty resulted in thousands of men and women leaving the country by force.
Whether the foreign national held a viable job, had children, or were with their spouse years before the marriage did not matter in these cases. According to the widow penalty law, if a U.S. citizen spouse passed away before the two-year mark of marriage to a foreign national, deportation would ensue. Given the lengthy bureaucratic process associated with the application for a green card, this law was extremely problematic for many.
In October of 2009, H.R. 2892 was signed into law, effectively ending the widow penalty that had long since dominated immigration practices in this area. Referred to as Public Law No. 111-83, the law amends theImmigration and Nationality Act by removing the “for at least two years,” clause that was used to dictate the status of far too many “new” foreign nationals in the country.
With the new law came the allowance for widows of U.S. citizens to file a petition for resident status regardless of the duration of their marriage. Assuming that the marriage was genuine and legally sanctioned, no two-year minimum can now be placed on the status of a marriage in which the U.S. citizen dies before his or her spouse has the opportunity to gain citizenship as well.
At Pozo Goldstien, LLP we have spent more than 90 years working in the law, during which time we have seen the devastation caused by the repercussions of the USCIS’s enforcement of the widow penalty. We have also since seen the new hope that has been offered to widows who are no longer at risk of being deported from the U.S. simply because of their spouse’s passing.
Given that the law is still relatively recent, we understand that you may have many questions about the process, which is why a New York immigration attorney at our office should be contacted for assistance. If you do not find the answers you are looking for below, please feel free to contact us for additional information and support.
How do I take advantage of the new reform?Can my children be included in the law’s allowances?
Yes. Any unmarried child of a widower is permitted for inclusion in the process of completing a Form I-360 on behalf of the widower. In order to qualify, a child must be under the age of 21, or he or she must have been under the age of 21 at the time that the petition was first filed.
What if an I-130 form has already been filed?
A widower that has already been established as the beneficiary of an I-130 Petition for Alien Relative can benefit from the automatic conversion of said petition to the appropriate I-360 self-petition. An I-130 petition that was filed on behalf of a child before his or her 21st birthday can also be automatically converted and then used to establish the child’s age for the purpose of a petition.
What happens if I remarry?
The self-petition provision specifies that a widower must not remarry in order to qualify. However, separate provisions, specifically the “Surviving Relative Consideration” provision, do not specify such requirements. If a petition was filed by a spouse and you have since remarried, you cannot receive benefits from the new law.
Do I still need an Affidavit of Support?
In the new law’s provisions, widowers are allowed to self-petition, thus effectively eliminating the need for an affidavit of support which would need to be filed by another person on behalf of the immigrant.
How soon do I have to file?
Any widower who lost their spouse prior to the law’s enactment must have filed their self-petition within two years of the date that the law was passed (October 28, 2009). For foreign nationals who lost a U.S. citizen spouse after the law’s enactment, the self-petition must be filed within two years of the citizen’s death.
With the widow penalty no longer a threat, widowers of U.S. citizens are offered infinitely more possibilities to remain in the United States than they would otherwise have had. Regardless, it is still wise to involve an immigration lawyer in the matter as soon as possible. The process of self-petitioning can be difficult to understand if you’re not familiar with it, which is why the guidance of an attorney is crucial at this time.
When you work with Pozo Goldstein, LLP, your case will be in the hands of an experienced team with trusted results. As such, you will not need to worry about misfiling, nor will you need to concern yourself over unanswered questions because we can guide you through the entire process. Our legal services are offered in multiple languages, so there is no reason to wait – contact us today to learn more about getting started with your self-petition.
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