The following article explains the so-called “Widow’s Penalty.” Inconsistencies in the United States Immigration and Nationality Act have the effect of placing widows and widowers of United States Citizens in untenable positions should the American spouse pass away before some crucial phase of the Immigration process.

United States Immigration is a deep area of law as it is highly statute driven. There are some facets of US Immigration law that are byzantine, to say the least, one issue that can become very complicated and uncomfortable concerns the loss of immigration benefits upon the death of a US Citizen spouse.

Where a foreign national marries a US Citizen, if the foreign spouse wishes to obtain unconditional US Permanent Residence, then they must run a “gauntlet” of various adjudicatory proceedings to determine the bona fides of the marriage. From a certain perspective one could argue that scrutiny begins when the American Citizen files the K1 visa application. After initial approval, the application will be forwarded to the US Embassy (or it’s Consulate Counterpart) with jurisdiction over the foreign fiance’s place of residence. The Consulate will conduct an interview and upon application approval, they will issue a K1 fiance visa. The Thai (or any nationality, for that matter) fiancee must then pass inspection at a port of entry in the USA where officers will make another adjudication regarding admissibility.

After lawful admission in the United States, the non-Citizen fiancee must marry the Citizen fiance and apply for adjustment of status wthin 90 days. In most cases, the marriage is executed and the foreign spouse is approved for adjustment, thereby making her a conditional lawful permanent resident. After two years in conditional permanent resident status, the foreign spouse, along with her American husband, will need to file to have the conditionality of residence lifted and thereby make her an unconditional lawful permanent resident. The so-called “widows penalty” becomes an issue during the pendency of an adjustment of status application or before the submission of an application to lift the conditions of the foreign spouse’s residence. If the American Citizen spouse dies prior to the approval of either of these petitions, then it can create a difficult situation for the foreign spouse because the applicant no longer meets the requirement for a lifting of conditions or adjustment. Thus, the non-Citizen widow could be considered out of status as they are no longer married to a United States Citizen. US Courts have attempted to address this problem by interpreting statutes to allow foreign spouses to remain in the United States. The United States Department of Homeland Security has provided a sort of amnesty for widows by deferring inspection of those in that situation.

This issue has not been fully dealt with as there are many conflicting interpretations of the current law. The current members of the US judiciary seem to be in favor of eliminating this inequitable provision of US Immigration law as it leads to unfair outcomes for widows and widowers of American Citizens and Permanent Residents.