January 5, 2011
The death of a spouse is a traumatic and agonizing experience. When the surviving spouse is seeking an immigrant visa based on the marriage, however, the death of the spouse can be even more traumatic as it affects the immigration application process.
Generally, a widow who had been married for at least two years before the US citizen spouse’s death may still obtain permanent residency based on the marriage. The individual may file a petition for oneself seeking permanent residency, furnishing evidence to establish that the marriage was legitimate and bona fide. The petition must be filed within two years of the US citizen spouse’s death and the individual cannot be re-married.
For those who had not yet been married for two years prior to the US citizen spouse’s death, relief is now available due to the enactment of a law by President Obama on October 28, 2009. Prior to enactment of the law, a widow or widower of a US citizen could not apply for immigration benefits based on the marriage if the US citizen spouse died before their two-year wedding anniversary. The law aimed to address this Widow Penalty.
Understanding the injustice of this Widow Penalty, the immigration laws now allow widows of US citizens who died within two years of the marriage to obtain permanent residency. Widows must also file the necessary visa petitions within two years of the US citizen spouse’s death and not be remarried. For those whose US citizen spouse died before enactment of the law on October 28, 2009, the law mandates that the individual submit the immigration applications no later than October 28, 2011. Failure to timely file the petitions will prevent a widow from self-petitioning for permanent residency based on the marriage. It is therefore vital to ensure timely compliance with the filing window.
The death of a loved one is a tragic enough event. Thankfully, the immigration laws now acknowledge the injustice and aims to rectify the tragedy faced by a surviving widow.