Friday, June 12, 2009

DHS Suspends "Widow's Penalty"

On June 9, DHS Secretary Janet Napolitano announced that the government would cease the prosecution and deportation of widows and orphans of U.S. citizens who died before the permanent residence process could be completed.

“Smart immigration policy balances strong enforcement practices with common-sense, practical solutions to complicated issues,” said Secretary Napolitano. “Granting deferred action to the widows and widowers of U.S. citizens who otherwise would have been denied the right to remain in the United States allows these individuals and their children an opportunity to stay in the country that has become their home while their legal status is resolved.”

ICE will no longer place qualifying widow(er)s and orphans in removal proceedings. If a person has already been ordered removed, ICE will not enforce the removal order. In addition, USCIS will favorably consider requests for “humanitarian reinstatement” of revoked immigrant visa petitions.

The new policy will apply regardless of whether the U.S. citizen submitted a visa petition on behalf of his or her spouse and children before their death.

We link to the DHS Press Release from our “Green Cards Through Family Members” page at

Secretary Napolitano’s new policy is a stopgap measure which does not change the law, but allows time for Congress to step in and change the law before any deportations can take place.

And step in they did.

Just two days after Secretary Napolitano announced her new policy, Senators Menendez (D-NJ), Gillibrand (D-NY) and Leahy (D-VT) introduced the Orphans, Widows and Widowers Protection Act (S. 1427) which addresses the immigration-related hardships caused by the death of a sponsoring relative.

We link to this bill from our “Immigration Legislation” page at

Currently, the issue is being litigated in courts all across the U.S. There are nearly 20 cases being fought in Federal Court. Three federal appeals courts have ruled that an immigrant does not cease being a spouse when the American partner dies during the processing of a residency application.

The television program “60 Minutes” will feature an update on the "Widow's Penalty" on Sunday, June 14th.

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