The Widow’s Penalty: Fair Policy or Unjust Punishment

Kristin Wernig, Staff Writer

Jamaican immigrant Osserritta Robinson is bringing a different type of immigration fight to the U.S. Supreme Court.  Her goal:  to end the so called “widow’s penalty” that affects almost 200 immigrants.

Robinson, 31, of Mahwah, New Jersey, lost her American husband in the Staten Island Ferry crash in 2003.  Because the couple had only been married eight months when her husband died, immigration officials denied Robinson’s green-card application for permanent residence.1 Their basis was a United States law that, while aimed to crack down on sham marriages involving illegal immigrants, ends the green card eligibility of any immigrant whose citizen spouse dies before two years of marriage have elapsed.2 In 2007, a federal judge in Newark ruled that immigration officials were wrong, but that decision was overturned by the Third Circuit Court of Appeals in February of this year, holding that an immigrant who has been married to a U.S. citizen for less than two years upon the spouse’s death is not necessarily entitled to permanent status.3 The court noted that the holding was consistent with the core purpose of the U.S. family-based immigration policy: “the promotion of family unification for U.S. citizens and lawful permanent residents.”4

The widow penalty first appeared in the courts in the case of Piero v. INS.5 In that case, the Court of Appeals struck down a regulation that provided for immediate revocation of approval of an immigrant’s petition for nonquota status upon the death of the citizen spouse.6 The Piero case was the likely source of the “humanitarian reinstatement” regulations, wherein approved petitions could be reinstated.7 However, this left a loophole into which fell immigrant spouses whose citizen spouse died prior to approval of the petition.8 Federal court challenges to the effect of this loophole, dubbed the “widow’s penalty,” began in 2004 with the case of Freeman v. Gonzales.  Since then, numerous cases have been brought to the courts looking for an end to the widow’s penalty.  If the Supreme Court grants certiorari to Robinson, it could end the long-time penalty that has affected numerous alien widows and widowers that, having already suffered the tragic loss of their spouse, are forced to fight to stay in the United States. Continue reading “The Widow’s Penalty: Fair Policy or Unjust Punishment”