Although our nation generally permits aliens to apply to become lawful permanent residents of this country through their marriages to American citizens, U.S. Citizenship and Immigration Services (USCIS) automatically denies these applications when the citizen spouse dies within two years of the marriage. Termed the “widow penalty,” certain federal courts have rejected this policy as being both unreasonable and in opposition to the plain meaning of 8 U.S.C. § 1151, the statute which categorizes aliens as immediate relatives of U.S. citizens and thus grants them this opportunity. This conflict between the Agency and the judiciary, in turn, has caused a circuit split in the federal courts over the proper construction of the statute. This Note argues that the courts that do not award deference to the Agency’s interpretation are correct, and that USCIS should reform its policy to conform to their rulings. The statute unambiguously grants alien spouses the ability to be and to remain immediate relatives of U.S. citizens, despite the death of their citizen spouse before the couple’s two-year wedding anniversary.
Jayme A. Feldheim,
Ending the Widow Penalty: Why Are Surviving Alien Spouses of Deceased Citizens Being Deported?,
77 Fordham L. Rev. 1873
Available at: http://ir.lawnet.fordham.edu/flr/vol77/iss4/24