With a 79-19 Senate vote, Congress has corrected one of the more draconian immigration policies to be visited upon foreign-born spouses of American citizens.
Called the ``widow's penalty,'' the policy allows immigration officials to annul spouses' applications for permanent residency when their American husbands or wives die before the marriage is two years old.
The U.S. government has long maintained that the marriage must last that long before the foreign spouse is eligible for a residency application, and that has put hundreds of widows and widowers whose mates died before that time period in line for deportation.
The House has already passed the same provision, which is part of a Homeland Security bill, and President Obama has said that he will sign it. Good. This rule has caused untold hardship for grieving spouses, quite often widows with young children.
Such was the case for Dahianna Heard of Casselberry, a Venezuelan who married U.S. citizen Jeffrey Heard, a military veteran, in 2004. Four months before they would have celebrated their second wedding anniversary Mr. Heard was killed in Iraq while working for a private security firm.
Ms. Heard had applied for permanent residency, but because her husband died before they had been married two years the U.S. Citizenship and Immigration Services told her she and her two sons would be deported. She appealed, but was denied repeatedly by the USCIS and immigration courts.
Only after articles about her plight appeared in El Nuevo Herald and The Miami Herald did immigration officials decide to reconsider. After reviewing her husband's military record and other data, the USCIS notified Ms. Heard in February 2008 that it had approved her petition for permanent residency.
This turnabout was welcome, but it also demonstrated how arbitrarily the rules can be applied by immigration authorities. Where Ms. Heard got a happy ending, an unknown number of widowed spouses have been deported, and hundreds of others are still in limbo over their fates.
Homeland Security Secretary Janet Napolitano appeared to be leaning toward finding a solution in June when she gave a two-year reprieve to spouses whose residency applications had been denied because of the two-year rule.
Congress now has taken that a step further. The new immigration measure will allow foreigners married to U.S. citizens to apply for permanent residency without waiting two years, and the death of a spouse won't be a determining factor in the outcome.
Back in June Ms. Napolitano explained the two-year reprieve by saying, ``Smart immigration policy balances strong enforcement practices with common-sense practical solutions to complicated issues.'' Clearly, common sense prevailed in Congress.
Bron: http://www.miamiherald.com/opinion/editorials/story/1296040.html
'Widow penalty' provision to end under new law
Photo By MARIA SANMINIATELLI
Associated Press Writer
NEW YORK -- A legal provision criticized for making personal tragedies worse by triggering the automatic deportation of a small group of widows and widowers of U.S. citizens will not be in effect for much longer.
Congress gave final approval Tuesday to legislation that would effectively abolish a provision known as the "Widow's Penalty." The measure is part of a bigger Homeland Security bill that President Barack Obama is expected to sign.
Existing U.S. law triggers the deportation of surviving immigrant spouses of American citizens who die before they have been married two years. The new law would allow the widows to submit petitions seeking residency even when the spouse dies before two years of marriage.
"It's definitely a big relief, it doesn't feel like prison any more" said Agnieszka Bernstein, whose husband Bryan died of a heart attack in 2006, just short of their first anniversary, at the age of 32.
Bernstein came to the U.S. in 1998 from Gliwice, Poland, and lives in Spring Valley, about 30 miles north of New York City. She works part time as a dental assistant and cleaning houses, unable to visit her family in Poland for fear she would be denied re-entry.
"Until yesterday it just felt like a beautiful prison. I could leave but I could never come back. I felt trapped in this immigration mess," Bernstein said in a telephone interview Wednesday.
Those affected come from all corners of the worlds and span all economic backgrounds: they include a woman from Kosovo whose contractor husband was killed in Iraq, a woman from Ecuador whose husband was a U.S. Border Patrol agent killed in the line of duty, a Jamaican whose husband was killed in New York City's Staten Island ferry accident, and a Briton and former head chef for Prince Charles and Princess Diana whose actor husband died of pancreatic cancer.
"I've got hundreds of messages (from widows), and it's really great," said Brent Renison, a lawyer in Portland, Oregon, who created a support network for widows and widowers, and has taken the lead in the widows' class action suit. At least 200 people are affected by the widow penalty, he estimates.
"I'm not religious, but I just think that if there are souls of the deceased out there they're finally at rest," Renison said.
Congress' action comes as the requirement is under legal attack all over the country, including a class action lawsuit filed in Los Angeles and individual litigation in Georgia, New Jersey, New York, Massachusetts, Maryland, Missouri, Ohio and Texas.
It also had led Homeland Security Secretary Janet Napolitano this summer to suspend it for two years. The agency said at the time that legislation would be needed to permanently fix the law.
The U.S. Citizen and Immigration Services referred calls to the Department of Homeland Security, which released a statement late Wednesday praising Congress "for supporting the widows and widowers of U.S. citizens who otherwise would have been denied the right to remain in the United States."
At the root of the problem was a 1970 court ruling that stated that a husband's death stripped the wife of her position as spouse, meaning she no longer qualified for a green card. A 1990 law then narrowed that ruling's scope, saying a widow married to a U.S. citizen for at least two years can file a petition for a residency permit on her own behalf.
The new law, championed by Rep. Jim McGovern and Sen. Bill Nelson removes the two-year marriage requirement.
Lawyers representing some of the widows said they would wait until Obama signs the bill before making any moves in the court cases, though they expect to either withdraw the lawsuits or settle the cases.
The Congressional vote ends years of uncertainly for people like Irina Gorovets of Moscow, who married Emil Gorovets, a composer and singer, in February 2000. He had emigrated from Russia in 1972 and become a U.S. citizen.
Two months after they were married he became sick for the first time, and was diagnosed with diabetes and kidney failure. She was tested to see if she could donate a kidney, but was told she was not compatible. He died at home Aug. 17, 2001.
Since then, she spends her time in the tiny New York apartment they shared together, working to keep her husband's legacy alive, cataloguing his music and transferring his songs from records to CDs.
"I'm relieved that other people who have to face the death of a spouse will never have to deal with the problems I went through," Irina Gorovets, who does not speak English, said in a statement through the New York Legal Assistance Group, a nonprofit that sued on her behalf.
Bron: http://www.miamiherald.com/news/nation/AP/story/1293127.html
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