On October 20, 2009 the U.S. Senate voted to pass the Department of Homeland Security Appropriations Bill Conference Report that contained a provision to end the widow penalty. The House of Representatives previously voted to pass the bill. The bill became Public Law Number 111-83 upon President Obama’s signature of October 28, 2009.
In the past the government has argued that the spouse’s death before the two-year mark ends the marriage, canceling the foreigner’s right to be considered for residency and opening the door to deportation.
The new provision does not directly address the government’s definition of marriage, but it allows foreigners married to Americans for less than two years to submit their own petition for residency within two years of the spouse’s death, as long as they have not remarried and can prove a good-faith marriage.
The law is also retroactive; any immigrant whose citizen spouse died less than two years after they wed, no matter how long ago, would have two years from the law’s enactment to petition for residency. Because the law was enacted on October 28, 2009, the deadline is October 28, 2011. After this two-year period, a petition must be filed within two years of the citizen’s death.
For those married at least two years at the time of the citizen’s death, the law remains the same: an I-360 must be filed within two years of the citizen’s death.
Furthermore, the deceased must have been a U.S. citizen at the time of death, and the Widow or Widower must not have been legally separated from their citizen spouse at the time of death.
In addition, the Widow or Widower must not have remarried in order to file this self-petition.
The petition must be filed with:
1. A copy of the marriage certificate to the U.S. citizen and proof of termination of any prior marriages of either person;
2. Copies of evidence that the deceased spouse was a U.S. citizen, such as a birth certificate if born in the United States, Naturalization Certificate or Certificate of Citizenship issued by USCIS; Form FS-240, Report of Birth Abroad of a Citizen of the United States; or a U.S. passport that was valid at the time of the citizen’s death; and
3. A copy of the death certificate of the deceased U.S. citizen spouse.
For further information please contact our office.