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Immigration Relief For Surviving Spouses Of US Citizens

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In June of 2009, Secretary of Homeland Security, Janet Napolitano amended an immigration law providing relief to surviving spouses of U.S. citizens that passed away before the couple’s two year anniversary. Under immigration law, when a US citizen marries a non-citizen, the non-citizen is eligible to become a legal permanent resident and receive a green card. However, the U.S. citizen spouse must file a petition on behalf of the non-citizen spouse before the two-year anniversary of the conditional green card as the non-citizen cannot ordinarily self-petition for legal permanent resident status during this time.

However, life is extremely unpredictable. A married couple does not normally think that in two years from their wedding date that one or both of them may no longer be living. Unfortunately, tragedy does strike at unexpected moments and a spouse may die.

What will happen to me if my spouse dies before we have celebrated our two year anniversary?

Although the widow penalty act is in no way shape or form a permanent fix to immigration law, it does serve as temporary relief for surviving spouses that find themselves in the difficult situation of burying their spouse too soon and not having attained permanent residence in the U.S.

If after my spouse died I moved back to my native country, can I still apply under this act?

No. You must be residing in the United States currently to obtain any relief under what has come to be known as the “Widow Penalty Act.”

If I have unmarried children under 21, will they obtain relief under this act as well?

Yes.

Will I have to still show that my marriage was bona fide?

Yes. This is not a loophole to allow fraudulent marriages to pass as bona fide in the U.S. You will still be forced to go through the interview stage and to prove to the USCIS officer that your marriage with your deceased spouse was bona fide. This may include showing photo albums of when you and your husband were together or may include affidavits from personal friends and families who witnessed you both as a couple.

More reform on the way?

Many lawmakers are unhappy with that they call a temporary band aid to the nation’s immigration problems. There is a call for further reform and it will be interesting to see to what extent lawmakers will push the Widow Penalty Act.

 

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