When it comes to immigration benefits from the federal government based on petitions by deceased spouses, widows are often confronted with the impact of a remarriage. If they were petitioned by a deceased spouse, but before adjustment of their status to lawful permanent residents unexpectedly fell in love with another, would they even consider re-tying the knot? What happens to a widow seeking immigrant status who decides to remarry after the U.S. citizen spouse’s death? Will she still qualify as a self-petitioning widow?
The Remarried Widow
Lucy met Henry, a U.S. citizen, while Henry was a student in Nevada. After three years together, Lucy and Henry got married in 2004 in a simple civil ceremony in Las Vegas. Since Lucy’s student visa was expiring, Henry filed a petition for Lucy with an application for adjustment of status to that of an immigrant.
A few months after filing the petition, Henry was hospitalized after collapsing in the gym. He suffered from aneurysm. Lucy was a widow at the age of 30. She stayed in the United States and waited for the result of Henry’s petition. Since her petitioner died, Lucy’s petition also was automatically revoked. At that time in 2005, Lucy could not file for a Self Petition as a widow because she was married to Henry for less than two years. The regulations then require her to be married for at least two years to file a widow self petition. She filed for reconsideration but the petition was nevertheless denied.
In 2011, Lucy’s friends introduced her to John, also a U.S. citizen. The latter would court Lucy and take her out on dates. A few months after being acquainted to each other, Lucy and John got married. Since Lucy had incurred unlawful presence, John immediately filed a petition for her so Lucy would be able to get her green card. Unfortunately, Lucy and John found themselves arguing most of the time and their marriage ended in divorce only after being married for five months. Lucy decided that it would be best if she just depart for the Philippines where her family resides. To make sure that she does not encounter legal problems upon her departure, she consulted with a lawyer about her rights as a widow and as a divorced spouse. It was during this consultation that she discovered that she still has an opportunity to legalize her stay and obtain a green card through the petition of her first spouse, Henry. She thought that by re-marrying John, she lost her chance to obtain an immigrant visa through Henry. What can she do?
Self Petitions for Widows
One of the exceptions to the rule that “petition dies with the petitioner” is the widow of a U.S. citizen petition. Hence, even if the U.S. citizen spouse dies, the surviving spouse may still avail of the immigration benefits of obtaining the green card by filing a self-petition.
Prior to 2009, there exists what was referred to as the “widow’s penalty”. This was applied as a bar to widows who have not been married for two years at the time of death of their U.S. citizen spouses. Widows who were married for less than two years were then prevented from applying for their green cards.
In 2009, the U.S. Congress has abolished the “widow’s penalty” for all applications pending on or after Oct. 28, 2009 and a widow(er) of a USC can now obtain residency if he or she was married at the time of the principal’s death and he or she petition’s for his or her green card within two years. There was also a transition period until Oct. 28, 2011 that allowed widow(ers) to file by that date if the citizen spouse died before Oct. 28, 2009, they were married for less than 2 years, and the widow(er) has not remarried.
The widow(er) petition is submitted on Form I-360. If the petition was filed as an I-130 and the petitioner dies, it is automatically converted into an I-360 petition if the widow(er) otherwise qualifies for an I-360. If the I-130 was denied based on the widow’s penalty, the petition may be re-opened and USCIS may re-adjudicate the petition.
Effect of Remarriage
The USCIS takes the position that the regulations defining what constitutes a “widow” contains a caveat that the widow must not have re-married as a condition for the widow to avail of the immigration benefits under the 2009 law. But in the recent case filed in federal court, Williams v. DHS Secretary (13-11270Eleventh Circuit 2013), the Court ruled that the “remarriage bar” does not apply to widows whose cases are re-opened under the 2009 survivors law or section 204(l) of the Immigration and Nationality Act. Applying the ruling of this case to Lucy, she will be able to obtain her immigrant visa despite her remarriage to John.
The case of Williams v. DHS refers only to re-opened cases under section 204(l) of the INA where the U.S. Congress attempted to remedy the harsh effect of requiring a two year marriage for purposes of filing widow petitions. For the general petitioning process, it is important to emphasize that the widow should still not be remarried if they wish to get their green card through the deceased spouse.
There should be no penalty for remarrying especially during the latter part of life where one seeks companionship during one’s senior years. But like any life changing decisions, it is important that the widow(er) take time to analyze the legal consequences of the marriage on any rights, benefits, privileges they currently enjoy as widows, whether it be in the context of social security pensions, taxes, or in this case, immigration.
(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at 721 1963 or visit her website at tancinco.weareph.com/old)
