A unfair provision of American immigration law is finally being abolished.

Congress passed a bill Tuesday that would make widows and widowers of U.S. citizens eligible for green cards even if their spouses died before their applications were approved.

The measure, part of the more than $40 billion Homeland Security appropriations bill, ends the “widow penalty” — which required couples to be married for two years before the surviving spouse would be eligible to apply for residency. Now, surviving spouses can apply for a green card for themselves and their children regardless of when the U.S. citizen died or how long they were married.

There are believed to be a few hundred cases affected nationwide, including that of Dahianna Heard, whose husband was fatally shot while working for a private security contractor in Iraq; Raquel Williams, whose husband died of sleep apnea and heart problems; and Ana Maria Moncayo-Gigax, whose husband was killed in a car crash while on duty with the U.S. Border Patrol. Many are fighting deportation, and others have already been deported.- Los Angeles Times

Actually Mrs. Heard was given permanent residency in early 2008. On the other hand, Air Force widow Nok Kells was fighting for the right to continue living in the United States not just for herself but her two children also.

For those of you unfamiliar with The Widow Penalty, it was a policy dating back to a 1970 administrative decision. A man or woman legal immigrant married to a U.S citizen spouse would be denied residency if the citizen spouse died and the marriage hadn’t yet reached two years in length. The denials were automatic, even if the couple produced a child from the relationship.

This policy was even applied to immigrant spouses of military members.  A 2003 law slightly modified how the Widow Penalty was applied. If a service member died in combat, their spouse could still get permanent residency.

I have written extensively on The Widow Penalty. If ROK Drop readers want to learn more about it, I suggest you read either this or this post of mine. I have been blogging on the subject since May 2007.

The Widow Penalty was suspended by Homeland Security Secretary Janet Napolitano early in 2009.  That was an improvement over the actions of the previous HS secretary who felt the constant appealing of lost appeals court decisions was responsible lawyering, but the suspension was  still not a solution. These legal immigrant widows were still in limbo and immigration continued to fight each and every court case brought against this odious policy.

When a marriage ends by the death the one of the spouses, obligations made because of the relationship aren’t automatically null and void. Contracts entered into, debts created by, and taxes owed are still in force. That is why I always argued The Widow Penalty was wrong. It wasn’t just because the policy lacked in humanity.

Update- This new legislation does NOT apply to the case of Hotaru Ferschke. Immigration doesn’t recognize her marriage because it was done by proxy and never consummated.