Reprinted from the New York Times:
The Senate approved a measure on Tuesday that would end what has become known as the “widow penalty” — the government’s practice of annulling foreigners’ applications for permanent residency when their American spouses die before the marriage is two years old.
The measure, which passed 79-19, was contained in a conference report that accompanied an appropriations bill for the Department of Homeland Security. The House of Representatives passed the conference report last week. President Obama is expected to sign the bill into law.
While the foreign spouse of a United States citizen may be eligible for residency under American law, the government has argued that the spouse’s death before the two-year mark ends the marriage, canceling the foreigner’s right to be considered for residency and opening the door to deportation.
The new provision does not directly address the government’s definition of marriage, but it allows foreigners married to Americans for less than two years to submit their own petition for residency within two years of the spouse’s death, as long as they have not remarried and can prove a good-faith marriage.
The law is also retroactive; any immigrant whose citizen spouse died less than two years after they wed, no matter how long ago, would have two years from the law’s enactment to petition for residency.
Lawyers and other advocates who have been lobbying for years to abolish the government’s two-year marriage requirement celebrated the vote.
“I feel an indescribable calm right now; it’s a little unreal,” said Brent Renison, a lawyer in Portland, Ore., and the pro bono counsel for Surviving Spouses Against Deportation, a nonprofit advocacy group. “It rights an injustice that has sorely needed to be corrected for a long time.”
The measure would provide relief to a few hundred aggrieved immigrants who entered the country legally, followed the rules and have been subject to deportation because their spouses died, Mr. Renison said.
Among them is Osserritta Robinson, a Jamaican immigrant whose husband of eight months died in the Staten Island ferry crash on Oct. 15, 2003. Her application for residency was tossed out because of the death, so she sued the Department of Homeland Security. The case has wound its way through the court system, and last summer, her lawyer filed an appeal with the United States Supreme Court.
The bill approved Tuesday would appear to moot Ms. Robinson’s case, along with about a dozen similar court cases around the country that are challenging the widow penalty.
Ms. Robinson’s lawyer, Jeffrey Feinbloom, said Tuesday that it remained unclear exactly how his client’s case would be resolved, though a settlement “in some capacity” seemed likely.
“The good news is that one way or another, Osserritta should be able to legalize her status,” he said.
The measure was championed by four Democratic senators: Robert Menendez of New Jersey, Kirsten E. Gillibrand of New York, Bill Nelson of Florida and Patrick J. Leahy of Vermont.