Green Card Bill Passes for Widows of U.S. Citizens

This week the U.S. Congress headed towards a new immigration law that would allow spouses of U.S. citizens to continue, or even begin the green card process, even if their U.S. citizen spouse has passed away. To date, the United States Citizenship and Immigration Service (USCIS) has taken the harsh approach that if the U.S. citizen petitioner died, the pending green card application died as well. This harsh approach resulted in tragic consequences of widows facing deportation after the death of their spouse. The bill Congress passed this week would allow surviving spouses to apply for a green card for themselves and their children, regardless of when their spouse died or how long they were married. President Obama is expected to sign it into law.

Immigration law provides for the foreign national spouse of a U.S. citizen to apply for a green card based on being married to a U.S. citizen. When the marriage is less than two years old, the foreign national receives a "conditional" green card. Shortly before the two-year anniversary of obtaining the "conditional" green card, the couple files a joint petition to remove the "condition". If the couple is no longer married or cannot submit a petition jointly, the foreign national spouse may still be able to submit the petition under various exceptions. This "conditional" green card process is supposed to help prevent and discover sham marriages, or marriages entered into primarily to obtain a green card. Entering into a sham marriage for a green card is a federal crime that can result in a prison term and fines.

A marriage-based green card also requires the petitioning U.S. citizen to submit an Affidavit of Support, creating an obligation to provide a threshold level of financial support until the foreign national spouse either becomes a U.S. citizen, earns forty Social Security units, or until they die. Previously, even if a marriage-based petition was allowed to continue after the death of a U.S. citizen petitioner, meeting this Affidavit of Support requirement was problematic. The proposed new immigration law solves this problem by not requiring an Affidavit of Support for the surviving spouse's application.

The details of how this new immigration law will work with particular cases will be complex, and will not be clear until new regulations are issued. Therefore any immigrant who believes they can benefit from this new law should contact an immigration lawyer.

Family-Based Green Cards, Marriage-Based Green Cards / by Michelle Gee