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I have blogged in the past about the so-called "widow penalty" in immigration law. These postings included one in June about DHS establishing relief by granting deferred action for two years to widows and widowers of U.S. citizens and children under 18 years old, who live in the US and who were married for less than two years before their spouse’s death.
USCIS has now issued formal guidance on this relief here. The link includes FAQs and a Fact Sheet.
CIS explains deferred action as
an exercise of prosecutorial discretion not to pursue removal of a particular alien for a particular period. Deferred action is not intended to be a permanent remedy to the “widow penalty,” rather it is a temporary discretionary solution to an issue that is subject to ongoing legislative and judicial actions. The grant of deferred action by USCIS does not confer or alter any immigration status.
Until the law is changed to eliminate the widow penalty, deferred action is the best that CIS can do to alleviate the hardship to families.
I recently blogged about a court case which held that a woman from Cambodia could continue with her permanent residence (green card) application although her US citizen husband had died before the paperwork was processed. US immigration service argued that the woman no longer qualified as a "spouse" since her husband had died before the case was approved.
Yesterday, U.S. DHS Secretary Janet Napolitano granted deferred action for two years to widows and widowers of U.S. citizens and children under 18 years old, who live in the US and who were married for less than two years before their spouse’s death.
U.S. Citizenship and Immigration Services (USCIS) is to suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse prior to the second anniversary of the marriage. DHS Establishes Interim Relief for Widows of U.S. Citizens
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A court in Massachusetts (Taing v. Napolitano) has held that a woman from Cambodia could continue with her permanent residence application although her US citizen husband died before the paperwork was processed. The US immigration service (CIS) argued that Mrs. Taing no longer qualified as a "spouse" since her husband had died before the case was approved.
This controversial so-called "widow penalty" has been the subject of many news articles, listed here. The New York Times recently called on the government to end this penalty also.
Mrs. Taing entered the US in 2004. Later that year, she married her late husband and they filed the relevant immigration paperwork. Six months later, Mr. Taing tragically died, before the immigration filings were approved. USCIS denied the permanent residence application, on the basis that Mrs. Taing was no longer a "spouse." The US Court of Appeals for the First Circuit agreed with the Sixth and Ninth Circuit court's views that the plaintiff in this situation remained a "spouse" and that she should not be penalized because CIS didn't adjudicate the case quickly enough. Although we rest our holding on entirely legal grounds, we note that our decision comports with common sense. We do not believe that Congress intended for the speed at which immigration authorities attend to a pending application to be dispositive in determining when a surviving spouse like Mrs. Taing, who has diligently followed the rules, can qualify as [a spouse.] As our sister court has recently noted, the result the government seeks would "create[] an arbitrary, irrational and inequitable outcome in which approvable petitions will be treated differently depending solely upon when the government grants the approval." Lockhart, 561 F.3d at 620 (quoting Robinson, 554 F.3d at 371 (Nygaard, J., dissenting)).
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