Shaina N. Elias · November 2008
77 GEO. WASH. L. REV. 172 (2008)
Today, hundreds of alien widows and widowers across the country face automatic deportation from the United States because their American citizen spouses died before the couples celebrated their two-year wedding anniversaries. Under the Immigration Service’s current interpretation of immigration law, if the citizen spouse dies before the second anniversary of the marriage, the alien spouse is no longer considered a “spouse” for immigration purposes. Accordingly, if an alien’s American spouse dies before the couple reaches the minimum time required, the Immigration Service will automatically deny, with no individual review of the facts, the alien spouse’s application to adjust status to legal permanent residence (“LPR”), or a green card, giving rise to the so-called “widow penalty.” Deemed by some as a “crack in the law” not intended by Congress, the widow penalty has likely remained unnoticed by legislators because its current application was not their intent. Contrary to the Immigration Service’s interpretation of immigration law, no statute enacted by Congress states that alien spouses should be denied LPR status upon the death of the citizen spouse if the underlying marriage is less than two years old. Rather, as this Note shows, the clear and unambiguous expression of Congress is for the two-year marriage length requirement to apply only to alien spouses whose citizen partners did not file a petition on their behalf before death, as opposed to all alien spouses generally.
The effect of the widow penalty on alien widows is anything but insignificant. Not only does the widow penalty effectively punish alien spouses for a happenstance out of their control, but it also facilitates the separation of biological parents from their American-born children. If a central policy of U.S. immigration law is to preserve family unity, the widow penalty undermines this goal.
To rectify this legal wrong, Congress should enact legislation to abolish the widow penalty for all alien widows, regardless of whether the citizen spouse filed a petition prior to death or marriage length. By exempting alien widows from the two-year marriage requirement for obtaining LPR status, and allowing them to self-petition for LPR status upon the death of their citizen spouses, Congress could put an end to the Immigration Service’s automatic deportation of grieving widows and its subsequent separation of families. With immigration reform dominating congressional dockets in recent years, legislative reform of the two-year rule is feasible at this time if the Immigration Service’s unjust application of the widow penalty can be highlighted.
