...if the American spouse dies within two years of the marriage, the foreign-born surviving spouse immediately loses resident status and can be deported. An Injustice Worth Fixing

Last week, we urged Congress to make two common sense immigration proposals a top priority when the House and Senate return to work in January. While they’re at it, they should also correct an unfortunate injustice in our existing immigration laws: the inflexibility of an obscure edict known as the 2-year rule.

It’s common knowledge that when a non-citizen marries an American, he or she immediately becomes a legal U.S. resident. What is less known, however, is a provision that’s come to be called the "widow’s penalty." Specifically, if the American spouse dies within two years of the marriage, the foreign-born surviving spouse immediately loses resident status and can be deported.

Take the case of Carla Freeman.

Carla was born in South Africa. She came to the U.S. for a limited period to serve as an au pair, according to the Washington Post. During her time in the States, she met and fell in love with Robert Freeman. Nevertheless, at the end of her au pair service, she returned home to South Africa. A short time later, Robert followed her and, after receiving her father’s blessing, the two were married. They returned to the United States and moved to Indiana, where Robert managed a Costco store.

Eleven months later, Robert was killed when a truck rolled over and crushed the car he was driving.

That would be a tragic enough story, but a few months later, Carla heard from the U.S. Immigration and Naturalization Service that she would be deported, forced to leave the family, friends and life that she had made with her husband here in America.

There are a handful of similar cases playing out across the country. But the story becomes much more complicated when there are children involved.

Children born in the United States are U.S. citizens. But in cases where a widow faces deportation after her husband has died, she must choose between taking her American child to a foreign land or leaving the child with her husband’s relatives in the U.S. That’s the kind of decision no parent should have to make.

The problem is a provision in a 1990 immigration law designed to make it more difficult for foreigners to get green cards through sham marriages with American citizens, an intent that we support. Since then, however, Congress has passed exceptions for 9/11 widows and surviving spouses of military personnel killed in combat, eliminating the unintended consequences resulting from those tragic circumstances.

There’s likewise no reason that a more general exception couldn’t be put into place to eliminate the unfortunate widow’s penalty created by the two-year rule.

First, the rule isn’t working. Anyone who knows enough about immigration law to sell a marriage to a foreign national seeking a green card knows that he or she will have to wait out the two years before getting divorced.

It should be equally obvious that nearly all foreign-born husbands and wives who have stayed in a marriage long enough to lose their spouse to death have demonstrated that their immigration motives were more than pure.

Most important, our government, which is supposedly trying to be more friendly to families, needs a more considered approach to deporting a surviving parent of a U.S. citizen, forcing those children into a life of either parental or immigration limbo.

As we have made clear in the past, we support strong measures to secure our borders in order to ensure American security, and we oppose measures to relax immigration standards. We also acknowledge that the widow’s penalty is a fairly small issue. However, it illustrates a larger point. Sweeping government action almost always results in negative consequences for someone. In this case, mitigating those consequences would require almost nothing but a little Congressional effort. These spouses are no threat to national security, and they obtained their "resident" status legally.

Fortunately, there is some good news: thanks to important immigration questions raised during the debate of the Intelligence Reform Bill, Congress will have to address the issue early next year. We hope that they will use that opportunity to address the widow’s penalty and provide some measure of comfort to the handful of men and women who now face deportation. The death of a spouse should be penalty enough.

December 15, 2004
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