Widow’s remarriage: A penalty to obtaining status?
When it comes to claiming immigration benefits for widows, some applicants are confronted with the consequences of remarriage.
If an aspiring immigrant was petitioned by a deceased spouse, should she or he consider retying the knot? What happens to a widow seeking immigrant status who decides to remarry after the US citizen spouse’s death? Will she still qualify as a self-petitioning widow?
The remarried widow
Take the case of Lucy. She met Henry, an American citizen, while he was a student in Nevada. After three years together, Lucy and Henry got married in 2004 in a simple civil ceremony in Las Vegas. Since Lucy’s student visa was expiring, Henry filed a petition for Lucy with an application for the adjustment of her status to that of an immigrant.
A few months after filing the petition, Henry collapsed in the gym. He suffered from aneurysm and died. Lucy was a widow at the age of 30. She stayed in the US and waited for the result of Henry’s petition. However, since her petitioner died, Lucy’s petition was automatically revoked. At that time in 2005, Lucy could not file a self petition as a widow because she was married to Henry for less than two years. The regulations then required her to be married for at least two years to file a widow’s self petition. She filed for reconsideration but the appeal was denied.
In 2011, Lucy’s friends introduced her to John, also a US citizen. A few months later, Lucy and John got married. Since Lucy had incurred unlawful presence, John immediately filed a petition for Lucy to get her green card. Unfortunately, Lucy and John found themselves arguing most of the time and their marriage ended in divorce after only five months. Lucy decided that it would be best if she just departed for the Philippines.
To make sure that she would not encounter legal problems upon her departure, she consulted a lawyer about her rights as a widow and as a divorced spouse. It was during this consultation that she discovered that she still had an opportunity to legalize her stay and obtain a green card based on the petition of her first spouse, Henry. She had thought that by remarrying John, she had lost her chance to obtain an immigrant visa.
Self petitions for widows
One of the exceptions to the rule that a “petition dies with the petitioner” is the widow’s petition. Hence, even if the US citizen spouse dies, the surviving spouse may still obtain a green card by filing a self-petition.
Prior to 2009, there existed what was referred to as the “widow’s penalty.” This was applied as a bar to widows who were not married for at least two years at the time of death of their spouses. Widows who were married for less than two years were prevented from applying for their green cards.
In 2009, the US Congress abolished the “widow’s penalty” for all applications pending on or after Oct. 28, 2009. A widow or widower of a US citizen can now obtain residency if he or she was married at the time of the principal’s death, and he or she petition’s for a green card within two years. There was also a specified transition period until Oct. 28, 2011, allowing them to file petitions by that date if the citizen spouse died before Oct. 28, 2009—if they were married for less than 2 years, and if he or she had not remarried.
The widow’s petition is submitted on Form I-360. If the petition was filed as an I-130 and the petitioner dies, it is automatically converted into an I-360 petition (if the widow otherwise qualifies for an I-360). If the I-130 was denied based on the “widow’s penalty,” the petition may be reopened and readjudicated.
Effect of remarriage
The US Citizenship and Immigration Service takes the position that the regulations defining what constitutes a “widow” contains a caveat that the widow must not have remarried to avail of the immigration benefits under the 2009 law. But in a recent case filed in the federal court, (Williams v DHS Secretary, (13-11270 11th Circuit 2013), the Court ruled that the “remarriage bar” does not apply to widows whose cases are re-opened under the 2009 survivors law or section 204(l) of the Immigration and Nationality Act.
Applying the ruling of this case to Lucy, she will be able to obtain her immigrant visa despite her remarriage to John.
The case of Williams v DHS refers only to reopened cases under section 204(l) of the INA where the US Congress attempted to remedy the harsh effect of requiring a two year marriage for purposes of filing widow petitions. For the general petitioning process, it is important to emphasize that the widow should still not be remarried if they wish to get their green card based on the petition of the deceased spouse.
There should be no penalty for remarrying especially during the latter part of life where one seeks companionship during one’s senior years. But it is important that one takes the time to analyze the legal consequences of remarriage on any rights, benefits, privileges they currently enjoy as widows, whether it be in the context of social security pensions, taxes, or in this case, immigration.
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Atty. Lourdes Tancinco may be reached at [email protected] or at 7211963 or visit her website at www.tancinco.com
