Fewer Worries for Immigrant Widows

Imagine being a foreigner married to an American and living in the United States. Shortly after your marriage, your spouse dies. Besides mourning your spouse’s death, you now have an additional worry—deportation.

However, there is good news; as part of a bigger Homeland Security bill that President Obama will be signing, the “Widow’s Penalty” will be abolished.

What is the Widow’s Penalty?

Under current American immigration law, if the American spouse of an immigrant dies before they have been married for two years; the surviving immigrant spouse will be automatically deported.  

What is Deportation?

Deportation means forcing out a person back to their home country because they don’t have the right to be in that country. Because the widows aren’t American citizens yet, they lose their rights to remain in the United States after their spouse dies.

However, under the new law, the surviving spouse can submit a petition seeking residency. Residency means the widow can remain in the US - able to work, travel in and out of the country and accumulate time for purposes of obtaining naturalization for US citizenship.

Widows are Pleased

Many widows expressed their sentiment with the new law. "It's definitely a big relief; it doesn't feel like prison any more" said Agnieszka Bernstein, whose husband, Bryan, died at age 32 of a heart attack before their first anniversary. [1]  After her husband’s death, Bernstein has been unable to visit her family in Poland, fearing that if she leaves, she couldn’t return to the U.S. "Until yesterday it just felt like a beautiful prison. I could leave but I could never come back. I felt trapped in this immigration mess," Bernstein said in an interview.[2]

Bernstein is not the only widow affected. "I've got hundreds of messages (from widows), and it's really great," said Brent Renison, a lawyer in Portland, Oregon.[3]  Renison has created a support network for widows and widowers and took the lead in the widows' class action suit seeking these changes to the law. At least 200 people are affected by the widow penalty, he estimates.

Widows affected by the change include a woman from Kosovo whose contractor husband was killed in Iraq; a woman from Ecuador whose husband was a U.S. Border Patrol agent and killed in the line of duty; and a Jamaican whose husband was killed in New York City's Staten Island Ferry accident.

What Caused this Change?

Congress was forced to re-examine and change the law after the deportation requirement was attacked. A class action lawsuit was filed in Los Angeles and individual lawsuits were filed all over the United States including Georgia, New Jersey, New York, Massachusetts, Maryland, Missouri, Ohio and Texas. 

As a result, Homeland Security Secretary Janet Napolitano suspended the “Widow’s Penalty” for two years and Congress recently voted to abolish it.

What Will Happen to the Pending Lawsuits?

These cases may become null after the new law, therefore lawyers representing the widows will wait for the new bill to be signed before proceeding with the court cases. Afterwards, they will either withdraw the lawsuits or settle the cases. 

In the meanwhile, they’re pleased, "We're thrilled to see the end of this unjust policy that has had devastating effects on the lives of so many surviving spouses," said Caryn C. Lederer, a lawyer for the New York Legal Assistance Group that represents a Russian widow.[4] 

While the widows will still undoubtedly be facing difficulties in the future, at least they can rest assured that they can remain in their new homes. 

Question for Your Attorney

  • If the new law applies to my case, what options do I have for my case? What is the difference between withdrawing or settling a lawsuit?
  • How does the abolishment of the "Widow's Penalty" affect a widow with kids? What if the kids are not the kids of the deceased spouse?
  • I have an aunt that was affected by the "Widow's Penalty". Will the new law allow her to come back?
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