Obama signs FY 2010 DHS Spending Bill [source: Asian Journal]

Law ends widow penalty, includes to other petitions
A NEW law signed by President Barack Obama on October 28 will provide relief to immigrants whose petitions were revoked upon the death of their petitioner.

The FY 2010 DHS Spending Bill, which passed the Senate on a 79-19 vote on October 27, includes an immigration measure that allows a spouse, child and other family members to receive a green card visa when their priority date is reached, even when the petitioner dies.

FY 2010 DHS Spending Bill puts an end to the “Widow’s Penalty.” According to the New York Times, the Widow’s Penalty is “the government’s practice of annulling foreigners’ applications for permanent residency when their American spouses die before the marriage is two years old.”

According to AILA Info Net, the new law “includes statutory authority for USCIS to complete processing of permanent residence applications for surviving spouses and other relatives of immigration sponsors who die during the adjudication process (section 568).”

In an interview with the Asian Journal, Immigration Attorney Robert Reeves explained that before the signing of the bill, the death of a petitioner or principal benefi ciary usually results in an automatic revocation of the immigrant visa petition.

“This is fantastic news,” said Reeves, whose fi rm has been lobbying Congress to pass this bill. “This is an incredible benefi t for those who have previously fi led humanitarian reinstatement. Now, we can fi le them for permanent resident status. This will benefi t thousands of immigrants.”

The new law does not only allow widows/widowers to submit petitions for permanent residency after their spouse’s death, it also covers all family-based petitions, “including petitions for unmarried children of US citizens under 21, family-preference categories who have approved or pending petitions which include the spouse and unmarried children of permanent residents, unmarried children over the age of 21 of US citizens, married children of US citizens, siblings of US citizens and the derivative children of this group,” says Atty. Reeves and Atty. Joseph Elias in their regular column article in the Asian Journal (see Community Journal section, p.C1 for more information.)

“Derivative beneficiaries of pending or approved employment- based immigrant visa petitions are also covered by the new law which include the spouse and unmarried children under age 21 of an individual who was sponsored under the employment-based category,” the article also stated.

According to Reeves, before the new law was approved, if the petitioner dies before the petition is approved or permanent resident status is granted, the spouse or child would be unable to obtain permanent resident status.

However, the new law does not apply to surviving family members residing outside of the US, added Reeves.

“Unfortunately, if they are not living in the United States right now they would have to file the traditional humanitarian reinstatement which is very difficult,” added Reeves. “The immigration services grants only a very few of them.”

The root of the law began in 1970 when the court ruled that a husband’s death stripped the wife of her position as spouse, meaning she no longer qualified for a green card visa. A 1990 law then narrowed that ruling’s scope, saying a widow married to a US citizen for at least two years can file a petition for a residency permit on her own behalf, according to the Associated Press.

The new law was championed by Rep. Jim McGovern and Sen. Bill Nelso.

[source: Asian Journal]