posted by lawyersofmelbourne.com.au admin on Dec 9
This article attempts to explain the “Widows Penalty.” Legal deficiencies in the US Immigration and Nationality Act place widows and widowers of Americans in a legally difficult position if the American spouse dies before a final ruling in a critical phase of the Immigration process.
US Immigration is a deep area of Law because it is an area largely governed by statutory regulations. Certain aspects of American Immigration can be very confusing and one of the most confusing issues deals with two things that few bi-national couples wish to address: Death and Loss of Immigration Benefits.
In cases involving marriage to a United States Citizen, for a foreign fiancee to eventually obtain unconditional permanent residence in the United States they must pass through a series of adjudications for the Immigration authorities to ensure that the marriage is not a sham. From a certain perspective one could argue that scrutiny begins when the American Citizen files the K1 visa application. Upon preliminary approval, the file will be sent to the US Embassy or Consulate with jurisdiction over the foreign fiancee’s residence. The Consulate will interview the applicant and if satisfied that the marriage is genuine, they will issue a K1 visa. The foreign fiancee will then pass through an inspection point at a port of entry in the United States where Customs and Border Protection officers will make another determination as to admissibility.
After being lawfully admitted to the USA, the foreign fiancee will have 90 days to marry the American Citizen and adjust status to permanent residence. In many cases, the marriage is executed and the non-citizen spouse has their status adjusted. They are accorded conditional resident status. After two years in conditional permanent resident status, the foreign spouse, along with her American husband, will need to file to have the conditionality of residence lifted and thereby make her an unconditional lawful permanent resident. The “Widow’s Penalty” can come into play before either the approval of the adjustment of status or the approval of the petition to lift of conditions of residence. Should the American spouse pass away before the adjustment of status or application for lift of conditions is approved, then technically the applicant no longer meets the requirements necessary to lift conditions or adjust status. Therefore, the foreign widow could fall out of status because they are no longer married to an American. US Courts have attempted to address this problem by interpreting statutes to allow foreign spouses to remain in the United States. The United States Department of Homeland Security has provided a sort of amnesty for widows by deferring inspection of those in that situation.
This issue has not been fully dealt with as there are many conflicting interpretations of the current law. The current members of the US judiciary seem to be in favor of eliminating this inequitable provision of US Immigration law as it leads to unfair outcomes for widows and widowers of American Citizens and Permanent Residents.