Will Congress Do Away With the Immigration ‘Widow Penalty’?

Will Congress Do Away With the Immigration Widow Penalty?

It was bad enough that Natalia Goukassian, then 21, had to spend her honeymoon in June of 2006 in West Palm Beach,
Fla., helping her husband Tigran find alternative treatments for connective tissue sarcoma, an aggressive cancer, or that six months later the Air Force enlisted man, 21, succumbed to the disease. But as it turned out, her painful ordeal had only just begun. While the Veteran Affairs Department deemed the Russian immigrant eligible for surviving spouse benefits, immigration officials at Homeland Security took a very different view: At
Natalia’s interview for legal residence the next year, she was told that
because she hadn’t been married long enough before Tigran died, she would be
deported. “To hit you with that when you’ve lost someone you loved and
you’re feeling desperate, to not consider me a spouse because my husband had
died,” says Natalia, now 24 and an accounting student at the University of
Central Florida in Orlando, “it seemed the coldest bureaucratic thing ever.”

Current Homeland Security Secretary Janet Napolitano has acknowledged complaints like Goukassian’s. Earlier this
month Napolitano, facing a growing number of lawsuits stemming from the so-called
“widow penalty” in U.S. immigration regulations, suspended the rule’s
enforcement. “Smart immigration policy balances strong enforcement practices
with common-sense, practical solutions to complicated issues,” she said. Critics have been harsher, suggesting that imposing the provision made authorities look petty if not heartless.

But some on Capitol Hill don’t think a temporary measure goes far enough.
On Tuesday, Florida Senator Bill Nelson and
Massachusetts Congressman Jim McGovern introduced legislation, the
Fairness to Surviving Spouses Act, that would nix the widow penalty for
good. To leverage their message, they were joined by both Goukassian and
another military widow, Diana Engstrom, whose husband was killed in Iraq in
2004 in a rocket-propelled grenade attack. Engstrom, a Kosovo native, found
out afterward that she too would be deported because she’d been married for
less than the two years required for an immigrant spouse’s legal residence

The legislation may seem a sure bet, but anti-immigration sentiment still runs hot enough in Congress to make passage of the Nelson-McGovern bill a real challenge; and it’s
likely a big reason the Obama Administration, which is cautiously trying to
revive immigration reform, hasn’t completely done away with the widow penalty on its own
yet. Conservative immigration think tanks like the Center for Immigration
Studies in Washington, for example, argue the rule is still a sensible
safeguard against rampant marriage fraud, sham matrimonies between a U.S.
citizen and a foreigner solely to get the latter a green card, or legal

“I feel bad for the widows, I’ve lost a spouse myself, but any measure that doesn’t uphold the [two-year marriage] condition would further compromise the integrity of our immigration laws,” says Michael Cutler, a Center fellow and former federal immigration fraud investigator. “We forget here that the green card for the alien spouse was meant as an accommodation for the U.S. citizen spouse, and that most alien spouses are being supported by the citizen spouse. When the citizen dies, should the U.S. assume the burden of supporting the alien”

Brent Renison, an Oregon immigration attorney who has headed up numerous
suits challenging the widow penalty, calls the marriage fraud argument
bogus. “We’ve never asked for automatic approval of these widows’ legal
residence status,” he says. “We simply ask that they be allowed to show that
their marriages were valid, and if so, recognize that the humane thing to do
is let them stay where they’ve made a new life.” That’s especially true,
Renison insists, when the surviving spouse has a U.S.-born child from the
marriage. In one of the more controversial cases, a Brazilian woman whose
U.S. husband died in his sleep of heart complications was handed a
deportation order despite having a 5-month-old, U.S. citizen son.

There are almost 300 known widow-penalty cases in the U.S. today, though lawyers like Renison believe there are hundreds if not thousands of other widows and widowers in similar situations who haven’t yet approached immigration authorities. Of the documented cases, about a quarter are estimated to involve children. If the numbers don’t seem
overwhelming, Renison argues that’s precisely the point: the dogged
pursuit of such cases gives immigration enforcement the kind of spiteful, Javert-like
image that it certainly doesn’t need. Immigration officials counter that they’re simply
enforcing the law. But “consider all the genuinely serious immigration
issues facing this country, and then consider how much time and money we’ve
been spending deporting these widows,” says Renison. “They followed the
rules, and yet they’re being punished for something completely beyond their

The courts are increasingly siding with the widows as well. In April, a
federal judge in Los Angeles told Homeland Security to reopen the cases of
22 immigrants denied green cards because their U.S. spouses had died, ruling
that the deaths should not nullify the widows’ legal
residence applications. But there have been judicial defeats for the widows
as well — some judges have ruled, understandably, that current immigration
law ties their hands — which is why they’re relying on legislation like

Goukassian, who says she has so far been able to get her deportation
deferred, is not yet part of a suit herself and feels confident Congress
will decide the widows “have the truth on our side.” Still, she fears there is a
culture inside the U.S. immigration bureaucracy that assumes
foreign spouses are merely green-card gold-diggers. She and Tigran were
genuinely in love, she says, because they were “Russian soulmates” — he was
born in Russia and came to America as a child with his parents — who met a
year after she arrived in the U.S. on a visitor’s visa to improve her
English language interpreter skills.

If such couples are indeed soulmates, say widow-penalty opponents, then the
immigration rule simply defies any sense of fairness. But to get the
Nelson-McGovern bill through Congress, they’ll probably have to convince immigration
conservatives that making the death of an American spouse a reason for the
deportation of a non-American spouse is downright un-American.