Vivo Law Offices LLC

What happens when the U.S. citizen spouse of a foreign fiancé(e) dies before a green card is obtained?  This issue, unfortunately, has not been completely addressed as there are various conflicting interpretations and arbitrary applications of the law today.  Referred to as the “Widow’s Penalty,” a foreign fiancé(e) can be denied immigration benefits when the U.S. citizen spouse dies before the fiancé(e) has a chance to obtain a green card.

In circumstances where a Petition is based upon marriage to a U.S. citizen, a foreign fiancé(e) has to pass scrutiny by the U.S. government, whose purpose is to determine whether the parties entered into a bona fide marriage.  In other words, the U.S. government will want to ensure that the couple married for love and not for immigration reasons.  Essentially, the inquiry begins when a U.S. citizen petitions a foreign fiancé(e) through a K-1 visa.  The Petition is filed with the United States Citizenship & Immigration Services (USCIS), which then refers the Petition to the National Visa Center (NVC).  The NVC forwards the Petition to the U.S. Consulate of the foreign fiancé(e)’s residence who is responsible for interviewing the fiancé(e) to determine the true intent of the couple.  The Consular Officer will ask a number of questions of the fiancé(e) and will require certain documents to be submitted to support the couple’s intentions to marry.  If the Consular Officer is satisfied, a K1 visa is issued to the foreign fiancé(e) to travel to the United States.  A visa, however, will not always guarantee the fiancé(e) entry into the United States.  Agents of the Department of Homeland Security (DHS), who will meet the arriving fiancé(e) at the port of entry, will have to determine if the fiancé(e) is admissible according to immigration laws.

If granted entry into the United States, the U.S. citizen and foreign fiancé(e) have 90 days to get married.  If the marriage does not occur within that timeframe, the foreign fiancé(e) becomes out of status.  The K1 visa is sponsor specific, so a foreign fiancé(e) who does not marry the original petitioning U.S. citizen cannot use the same visa to marry another U.S. citizen.  Once married to the U.S. citizen spouse, the foreign fiancé(e) will be eligible to apply for permanent resident status and obtain a green card.  If approved, the permanent resident status and the green card that is issued are conditional, which means that the couple must file another Petition with the USCIS to lift the conditions of that status.  The Petition must be filed within 2 years of the conditional green card being issued or as early as 90 days prior to the expiration of the conditional green card.  If the couple’s request to lift the conditions of the green card is granted, the foreign spouse will receive the 10 year unconditional green card.  The foreign spouse will be eligible to file for U.S. citizenship within 3 years of being issued the conditional green card or as early as 90 days before the 3 year date for eligibility.

So, what happens if the U.S. citizen spouse dies before either the conditional green card is issued or the conditions of the green card are not lifted?  The “Widow’s Penalty” places the immigrating spouse in a difficult position.  As a result of the untimely death of the U.S. citizen spouse, the foreign spouse, now a widow(er), could be considered out of status because he or she is no longer married to the U.S. citizen spouse.  This seems a harsh consequence for the foreign widow(er)s, and the U.S. Federal Courts and DHS have taken a sympathetic approach to addressing these unfortunate circumstances by allowing foreign widow(er)s to remain in the United States, deferring inspection and granting amnesty-like relief to those who find themselves in this difficult situation.  The application of the law continues to be arbitrary and conflicting.  However, the Courts appear to be moving towards favoring eliminating this harsh penalty in an effort to promote fairness to the innocent immigrant spouses already residing in the United States.

Tiffany U. Vivo is an Indianapolis immigration lawyer.  She also practices family law.  Ms. Vivo appears before the Immigration Court (EOIR), the United States Citizenship & Immigration Service (USCIS), the Board of Immigration Appeals (BIA) and state and federal courts in Indiana and Illinois.  She is a member of the Indiana State Bar, the Indianapolis Bar Association, and the national and local chapters of the American Immigration Lawyers Association (AILA).