Two days before the interview for his green card, James’ wife, Diana, suffered a heart attack and died. As his wife was the petitioner, the application for green card was denied. James was married for only eighteen months at the time of Diana’s death. After the denial of his application, James decided to return to Manila in 2007.
A similar case happened to Thelma. Ten years ago, her U.S. citizen husband petitioned her. The petition was approved and Thelma was scheduled to attend an interview at the U.S. Embassy in Manila. A week before the interview, Thelma received news that her husband died in a tragic accident at his workplace. Thelma’s application for green card was also denied because of the death of the petitioner. Thelma has been married less than two years at the time of her US citizen husband’s death.
On October 29, 2009, widow(er)s of U.S. citizens were given a compassionate and humanitarian opportunity to apply for green cards despite the death of their US citizen spouses . What steps do they need to take to apply for an immigrant visa? In the case of Thelma, the death of the husband took place almost ten years ago, can she still apply for the immigrant visa?
Prior Legislation on Two-Year Rule
Generally, one who is married to a U.S. citizen may be conferred immigration benefit as a green card holder. And when the U.S. citizen dies, the petition usually ‘dies’ with the petitioner. However, a humanitarian provision to give consideration to widows/widowers provides an exception to the rule. Those who have been married for at least two years to a U.S. citizen and those who file for immigrant petition within two years from death of the U.S. citizen spouse may still receive immigration benefit. This is on the condition that the widow has not re-married.
Before 2009, there were widows who were allowed to self-petition on the basis of the two-year rule. This requires a marriage of at least two years and filing of a self-petition also within two years from death of petitioner. While there are a significant number of widows who were able to get their green cards through self-petition within the two-year rule, there are many who lost this opportunity to self-petition because their US citizen spouses died less than 2 years into the marriage. These classification of widows who have been married for less than two years were deprived unjustly of immigration benefits. No consideration was given, at that time, even if the two-year wedding anniversary was just a few days from the death of the petitioner. There are also those who took care of their ailing spouses but whose marriage did not reach two years. The latter widows were forced to return back to their homeland while some continued to stay in the US without legal status.
Abolishing the Two Year Rule
To ameliorate the harsh effect of the two-year rule for widows who had valid marriages prior to the death of their U.S. citizen spouses, the law was amended on October 28, 2009 as part of the Department of Homeland Security Appropriations Act of 2010, P.L. 111-83, 123 Stat. 2145.The requirement of two years marriage was eliminated. This means that the marriage should have existed and the number of years as a married couple is no longer relevant. What is important to prove is that the marriage was entered into in good faith and that prior to the death of the US citizen, the couple lived together as husband and wife. Evidentiary proof of this marriage must be available for submission with the self-petition.
Transition Period
While the two-year marriage rule was eliminated, the law still requires that the self- petition by the widow must be filed within two years. And for those whose marriages were less than two years and failed to file within two years from death of their spouses, the amended legislation provides for a “transition period”. They are afforded only until October 28, 2011 to file their self-petitions with the U.S. Citizenship and Immigration Services.
Must Not Have Re-married
One of the requirements that still remain in effect is the fact that the widow of the U.S. citizen must not have remarried. If in the case given above, Thelma had remarried and is living with a new spouse, she will not be able to get her green card as the widow of a U.S. citizen.
In the case of James, even if the death occurred in 2007, he is still given until October 28, 2011 to file a Self-Petition. The US Citizenship and Immigration Service need not approve the petition before this date. All that is required is that it be properly filed and received by the USCIS on or before October 28, 2011.
So to all widow(er)s who were unable to self-petition because of the two year marriage rule ……do not delay. You only have until October 28, 2011 to file your self petitions to get the green card that you rightly deserve.
(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)
