[Congressional Record Volume 155, Number 56 (Thursday, April 2, 2009)]
[Senate]
[Pages S4369-S4370]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. NELSON of Florida (for himself, Mr. Durbin, Mrs. 
        Feinstein, Mr. Kennedy, Mr. Kerry, and Mr. Menendez):
  S. 815. A bill to amend the Immigration and Nationality Act to exempt 
surviving spouses of United States citizens from the numerical 
limitations described in section 201 of such Act; to the Committee on 
the Judiciary.
  Mr. NELSON of Florida. Mr. President, the Immigration and Nationality 
Act, INA, imposes what has become known as the ``widow penalty,'' 
requiring the deportation of individuals whose pending applications for 
green cards are rejected because their citizen spouse died within the 
first two years of marriage. Today, joined by Senators Durbin, 
Feinstein, Kennedy, Kerry and Menendez, I am introducing the Fairness 
to Surviving Spouses Act of 2009. My bill will amend the INA to remedy 
this unintended and unjustified administrative procedure.
  This legislation is needed because, under current law, when a US 
citizen marries a non-citizen, the non-citizen is eligible to become a 
legal permanent resident and receive a green card. During the first two 
years of marriage, the only way this can be accomplished is through a 
petition that the citizen files on the non-citizen spouse's behalf. The 
non-citizen cannot self-petition for legal permanent resident status 
during this time.
  If, however, the citizen spouse dies while the petition, through no 
fault of the couple, remains pending--and delays in the process are 
often caused due to bureaucratic delay--the petition automatically is 
denied, and the non-citizen is immediately deemed ineligible for legal 
permanent residence and therefore becomes deportable. This is the case 
even if ample evidence of a bona fide marriage, such as cohabitation, 
and shared finances, exists. It is even the case if a couple had a U.S. 
born child.
  Because of the widow penalty, law-abiding and well-intentioned widows 
who have played by the rules face immediate deportation. During the 
110th Congress, efforts to persuade the US Citizenship and Immigration 
Services, CIS, to address the issue administratively were unsuccessful. 
In the current administration, Secretary of Homeland Security Janet 
Napolitano has directed that the Department of Homeland Security review 
a number of immigration issues, including the widow penalty. Although 
this review is welcome, there is some question regarding the 
Secretary's authority to end the penalty administratively. That is why 
a clean legislative fix is needed, as scores of women and children face 
immediate deportation today.
  There have been more than 200 widow penalty victims throughout the 
country, including a woman whose husband died while serving overseas as 
a contractor in Iraq; a woman whose husband died trying to rescue 
people who were drowning in the San Francisco Bay; a woman whose 
husband was killed while on duty with the U.S. Border Patrol; and a 
woman who was apprehended by Federal agents when she went to meet with 
immigration authorities to plead her case, placed in shackles, and sent 
to a detention facility.
  The widow penalty has received national extensive national media 
attention, including from 60 Minutes, which profiled Raquel Williams, a 
widow who lives with her in-laws in Orlando, in a segment entitled, 
``For Better or For Worse--A Loss of Love and Country.'' After she was 
deemed deportable following the sudden death of her husband from sleep 
apnea and heart problems, Ms. Williams and her in-laws have been 
telling their story to raise awareness about this issue.
  The harsh and unfair widow penalty can be eliminated by allowing the 
petition to be adjudicated even though the citizen spouse has died. The 
proposed legislation affects only a small group of individuals who 
still would be required to demonstrate that they had a bona fide 
marriage before receiving a green card. Thus, USCIS would retain the 
discretion to deny petitions, but they would no longer deny them 
automatically in response to the death of the citizen spouse.
  Today, Rep. Jim McGovern is introducing identical legislation in the 
House. His bill passed out of the House Judiciary Committee during the 
110th Congress with bipartisan support, including from Republicans who 
led the charge against comprehensive immigration reform. The widows who 
face deportation today should not be forced

[[Page S4370]]

to wait for the Congress to take up comprehensive immigration reform. 
This legislation is needed now because it simply corrects an arbitrary 
and unjust sanction, one which would never have occurred but for the 
Government's failure to act more in a more timely manner and the 
unfortunate fact that the citizen spouse died before the couple's 
second anniversary.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 815

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. RELIEF FOR SURVIVING SPOUSES.

       (a) In General.--The second sentence of section 
     201(b)(2)(A)(i) of the Immigration and Nationality Act (8 
     U.S.C. 1151(b)(2)(A)(i)) is amended by inserting ``(or, if 
     married to such citizen for less than 2 years at the time of 
     the citizen's death, an alien who proves by a preponderance 
     of the evidence that the marriage was entered into in good 
     faith and not solely for the purpose of obtaining an 
     immigration benefit)'' after ``for at least 2 years at the 
     time of the citizen's death''.
       (b) Applicability.--
       (1) In general.--The amendment made by subsection (a) shall 
     apply to all applications and petitions relating to immediate 
     relative status under section 201(b)(2)(A)(i) of the 
     Immigration and Nationality Act (8 U.S.C. 1151(b)(2)(A)(i)) 
     pending on or after the date of the enactment of this Act.
       (2) Transition cases.--
       (A) In general.--Notwithstanding any other provision of 
     law, an alien described in subparagraph (B) who seeks 
     immediate relative status pursuant to the amendment made by 
     subsection (a) shall file a petition under section 
     204(a)(1)(A)(ii) of the Immigration and Nationality Act (8 
     U.S.C. 1154(a)(1)(A)(ii)) not later than the date that is 2 
     years after the date of the enactment of this Act.
       (B) Aliens described.--An alien is described in this 
     subparagraph if--
       (i) the alien's United States citizen spouse died before 
     the date of the enactment of this Act;
       (ii) the alien and the citizen spouse were married for less 
     than 2 years at the time of the citizen spouse's death; and
       (iii) the alien has not remarried.
                                 ______