Recently, the U.S. Congress passed a law that will greatly benefit the surviving spouses and other dependents in immigration petitions. This new law H.R. 2892, which was sponsored by several congressional members including Robert Menendez (D-NJ) of New Jersey, will end the so-called “widow penalty” through an amendment to the DHS Appropriations Bill. The law will benefit surviving spouses and other qualified relatives of U.S. citizens as well as their children. The law covers not only family petitions but also employment petitions and asylum-based immigrant petitions.
The problem of the current system is timing. Under the current immigrant visa quota system, it may take many years for certain types of immigrant visas to be available. Because of the lengthy waiting time, the petitioner may actually die before there is a visa available for the beneficiary. For example, if a U.S. citizen petitions for a brother who was born in China or the Philippines, the average waiting time for a visa is ten years or longer. Under the current system, if the citizen dies, the petition will have to be canceled even if the relatives are all in the U.S. Or if a person is applying for a green card under the employment categories, the waiting time is also extremely long now. If unfortunately the principal beneficiary – the worker who is being petitioned – dies, the petition will be denied or revoked under the current law, and the surviving spouse and children must return to their home country. The purpose of the new law is to protect these surviving relatives so that they won’t be deported by the U.S. government.
Other than the above examples, perhaps the most important part of the law is to allow the surviving widow of a U.S. citizen more options to stay in the U.S. Currently, the law allows the surviving spouse of a U.S. citizen to self-petition for a green card only if the marriage took place at least two years before the petitioner's death. The new law eliminates the two-year requirement -- all surviving spouses will be allowed to apply for themselves and their children for lawful permanent status. But they must apply within two years of the law’s passage or two years within the death of the spouse. These spouses will be allowed to apply for legal status regardless of whether they are in the U.S. or outside of the U.S. Like before, they must still establish that the marital relationship was truthful and that they are likely to support themselves financially. Another catch is that they would lose this benefit if they re-marry. Their petition may also include their children under the age of 21.
Generally, immediate relatives including parents, spouses and children of a U.S. citizen with pending or approved petitions are covered by the new law. Other family petition such as brothers and sisters of citizens and sons and daughters of resident parents are also covered. It is important to note that the new law also protects the dependents if the principal beneficiary dies. Unlike the survivor widow of a U.S. citizen, other types of family petitions generally still require a substitute financial sponsor for the I-864 form after the death of the sponsor. Further, unlike the surviving spouses of citizens, if they are physically abroad, the new law would not protect them.
As stated above, the new law covers the beneficiaries of employment petitions and asylee/refugee petitions, including both the principals and dependents. This is significant help to the survivors considering the economic impact of the death of the principals on their family members in these types of petition.
CONCLUSION
It is expected that President Obama will sign this new legislation soon. The details and complexities of law will not be known until the government agencies have an opportunity to issue specific regulations to implement the law. For example, a surviving relative’s petition may still be denied if the government determines that his or her immigration to the U.S. is “not in the public interest.” It remains to be interpreted what exactly this phrase means.
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