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Surviving Spouses Against Deportation

by Brent Renison

Every year, a handful of surviving spouses and family members are deported because their U.S. citizen relative dies.

What is the widow penalty? In order to understand, it helps to learn about the process of becoming a Lawful Permanent Resident through marriage to a United States citizen. When a U.S. citizen marries a non-citizen, he or she may file a petition for that person to receive "immediate relative" status and be processed for Lawful Permanent Resident (LPR) status. LPR status is commonly referred to as the "Green Card." The non-citizen spouse may either apply for an immigrant visa abroad at a U.S. consulate, or if already in the United States, may apply for "adjustment of status" and be processed without leaving the country. One common misconception is that spouses of U.S. citizens are applying for citizenship - a non-citizen who gains LPR status through a spouse must reside in the United States as a resident for three years before applying for citizenship.

The immigration process often takes many months to complete. The married couple files the paperwork, then waits for the government to process. During this waiting period, the non-citizen spouse may receive work authorization and travel permission. If an applicant is given resident status prior to the second wedding anniversary, the LPR status is called "conditional" and referred to as "Conditional Permanent Resident (CPR) status. CPR status is virtually the same as LPR status, with the condition that the couple file a simple form after two years attesting to the continuing validity of the marriage to remove the condition. If the marriage is no longer valid, the CPR has the option of proving that the marriage was terminated through divorce but was entered into in good faith, or show abuse, or that the citizen spouse has died. This is the case even if the marriage never reached the two year mark.

With respect to the "widow penalty," the government takes the view that if the death occurs before the couple's applications are adjudicated (CPR status), even if the marriage is one day short of the two year wedding anniversary, the application can be denied because the applicant is no longer a "spouse." Yet, in a case that sees quick adjudication to CPR status, the government allows the CPR to file to remove the condition despite the death, even if the marriage only lasted (for example) three months! The members of Surviving Spouses Against Deportation believe that the term spouse encompasses a surviving spouse. The only Circuit Court to review this issue has agreed.

The following Miami Herald January 9, 2008 editorial of Dahianna Heard's case ( helps bring the widow penalty to "life."

About The Author

Brent Renison is a Partner at the Law Firm of Parrilli Renison LLC. Mr. Renison represents employers and key employees with business-based immigration. In 2006 and 2007, he was named by Law & Politics as a Super Lawyer. In 2007, he was presented with a Presidential Award in Orlando, Florida by the American Immigration Lawyers Association for Outstanding Achievement in Mentoring and Litigation on behalf of immigrant rights.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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