WIdow Penalty Updated
CA6 Strikes Down Widow Penalty (Updated 8/13/09)
The Sixth Circuit’s decision in Lockhart v. Napolitano rejected USCIS’s “widow penalty.” This practice involved denying a surviving spouse’s immigration case when the U.S. citizen petitioner died before two years of marriage. The court held that the statute’s “immediate relative” definition did not impose a two-year durational requirement. This applied where a good-faith marriage existed and filings were properly made.
What the ruling means (as of Aug. 13, 2009).
Within the Sixth Circuit (KY, MI, OH, TN), Lockhart undermined agency denials based solely on marriage length. The opinion directed USCIS to adjudicate surviving spouses’ pending I-130/I-485 cases on the merits. They needed to consider bona fides and admissibility rather than ending them automatically because the marriage was under two years when the U.S. citizen died.
Policy momentum after the ruling.
Following mounting litigation—led earlier by the Ninth Circuit’s Freeman v. Gonzales—DHS announced on June 9, 2009 a nationwide suspension of widow-penalty enforcement. They also announced deferred action for affected widow(er)s and certain children. This signaled a shift even before Congress ultimately acted.
Subsequent developments (for context).
Later in 2009, Congress ended the widow penalty nationwide by removing the “for at least two years” language from the INA. Under Public Law 111-83 (Oct. 28, 2009), bona fide widow(er)s may self-petition on Form I-360 within two years of the U.S. citizen spouse’s death. Visa numbers are immediately available, and no Affidavit of Support is required (I-864W exemption).
Practical takeaways for surviving spouses.
- If a U.S. citizen spouse has died, act promptly to preserve rights—confirm whether a prior I-130 is pending (which may convert) or file an I-360 within the two-year window.
- Prepare robust bona fides evidence (joint residence/finances, photos, affidavits). Also, address admissibility (medical exam, any necessary waivers).
- Eligible applicants in the U.S. may adjust status (I-485). Others can pursue consular processing after I-360 approval.
Our office uses Lockhart’s reasoning and the subsequent statutory change to secure approvals for widow(er)s and their qualifying children, ensuring fair adjudication after loss.
