On June 9, 2009, a landmark change in U.S. immigration policy related to the “widow penalty” was issued in a press release from Department of Homeland Security Secretary Janet Napolitano. In it, she described a complete reversal on the part of the government that allows some benefits to the spouses of US citizens, who are penalized under current law if the U.S. citizen passes away before the couple has been married for two years.

Under current law, a foreign national who is married to a U.S. citizen can be the beneficiary of an immigrant visa petition, and on that basis can apply for a green card. The U.S. citizen can also petition for children who are unmarried and under the age of 18 in the same manner. However, the law provides that the widow/widower of a U.S. citizen can only benefit based on the marriage if they had been married for two years prior to the death of the citizen, they were not at that time legally separated, and the citizen actually filed an immigrant visa petition on their behalf. The rule is the same for children. The law allows for those married for more than two years prior to the death of their spouse to self-petition for an immigrant visa and then green card.

Litigation in several circuit courts has challenged this disparate treatment on behalf of widows whose US spouse passed away – some even killed in the line of duty – during DHS adjudication delays, and courts have held that DHS’s interpretation was not reasonable.  The new policy partly implements these court decisions by providing some relief to these innocent spouses. (more…)