By: Dennis E. Chua, Esq.
On October 28, 2009, President Obama signed into law a bill which ended the so-called widow penalty. Before the passage of this law, widow(ers) of US Citizens will not be able to get their green cards if they have not been married for at least two years. For those who have been married for two years, they can self-petition and eventually get their green cards if they can show that their marriage to the US citizen spouse was bona fide. For those US citizen spouses who died before the marriage has existed for at least two years, their surviving spouses are subject to the so-called widow penalty. The petitions filed for them will result in their automatic denial and these widows faced the threat of deportation. As discussed in our previous article, the US Citizenship and Immigration Service has issued a Memorandum on June 15 2009 which provided guidance as to how these widows can stay despite the death of their US citizen spouses, to temper the harsh effect of the widow penalty.
With this new law, it now removes the two-year marriage requirement from the current law and now allows these widows to self-petition. They would still however need to show that the marriage was entered into in good faith. Unmarried children below 21 years old of the widow(er) may be included in the self-petition that is filed for the widow(er).
This new law benefits all widow(ers) whether they are currently here in the United States or outside the country. There are deadlines which need to be met in filing the self-petition. These widow(ers) whose spouses died prior to the enactment of this law must file their self-petitions within two years from the law’s passage or until October 28, 2011. Widow(ers) whose spouses died after the passage of the law must file their self-petitions within two years of the citizen’s death.
This new law also benefits other relatives of deceased petitioners. The new law added a new section to the US Immigration and Nationality Act and allows certain relatives to have their petitions or green card applications decided despite the death of their petitioning relative. In order to qualify under this section, the following conditions must be met:
a) The petition must have been filed prior to the death of the petitioner;
b) The beneficiary or derivative beneficiary resided in the U.S. at the time of the death of the petitioner;
c) The beneficiary or derivative beneficiary continues to reside in the US.
The law enumerates those relatives who are included, and they are as follows:
a) Immediate relatives (spouse, parent, minor, child of a US citizen);
b) Unmarried son or daughter of a US citizen;
c) Married son or daughter of a US citizen;
d) Spouse or child of a legal permanent resident;
e) Brother or sister of a US citizen;
f) Employment based dependents or derivative beneficiaries;
g) Beneficiaries of refugees/asylee relative petitions;
h) Nonimmigrant in T or U status;
We welcome the passage of this new law as it eliminates the harsh consequences of the widow penalty and benefits certain survivors of deceased petitioners who are here in the United States. Although the law will not cover all survivors of a deceased petitioner, the passage of the law is a step forward in removing the inequities of the current immigration law.
Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail
CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com