[House Report 110-911]
[From the U.S. Government Publishing Office]







110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-911

======================================================================



 
 AMENDING THE IMMIGRATION AND NATIONALITY ACT TO PROVIDE FOR RELIEF TO 
                     SURVIVING SPOUSES AND CHILDREN

                                _______
                                

October 3, 2008.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Conyers, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 6034]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 6034) to amend the Immigration and Nationality Act to 
provide for relief to surviving spouses and children, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

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 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 pending on or after the date of 
        the enactment of this Act.
          (2) Transition cases.--
                  (A) In general.--In the case of an alien described in 
                subparagraph (B) who seeks immediate relative status 
                pursuant to the amendment made by subsection (a), the 
                alien shall have until the date that is 2 years after 
                the date of the enactment of this Act to 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)), notwithstanding any other provision 
                of law.
                  (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.

                          Purpose and Summary

    H.R. 6034 would end the widow penalty by allowing the 
petition for permanent residency of a widow or widower to 
continue despite the death of the U.S. citizen petitioner. It 
would also allow widows and widowers to self-petition if a 
petition was not filed before the death of the U.S. citizen 
spouse.

                Background and Need for the Legislation

    Under current law, U.S. citizens can file for legal 
permanent residence for their foreign spouses. Once a petition 
is filed, it can often take several months, and sometimes 
years, for the Department of Homeland Security (DHS) to 
adjudicate the case. When a couple is married less than 2 years 
and the U.S. citizen petitioner dies before the petition is 
filed and adjudicated, the spouse is no longer eligible for 
permanent residence and must immediately return to his or her 
home country or be subject to deportation.
    Widows and widowers often face difficult decisions when 
mourning the death of a spouse, including deciding whether to 
leave behind family they have come to love, and whether to 
separate their U.S. citizen children from their deceased 
spouses grandparents and other family members. This widow 
penalty also causes exceptional hardship for U.S. citizen 
families who welcome the addition of their son or daughter's 
spouse to the family. Unfortunately, upon the death of their 
child, the surviving spouse faces deportation. And, in many 
cases, the spouses deportation could result in loss of contact 
with grandchildren, one of the last few connections to a 
deceased son or daughter.
    The Congressional Research Service reports that one of the 
two most common circumstances for granting private bill relief 
relates to ``a conditional permanent resident petition for an 
alien spouse not being approved before the untimely death of a 
U.S. citizen spouse.'' Indeed, the Subcommittee on Immigration, 
Citizenship, Refugees, Border Security, and International Law 
ordered favorably reported a private bill, H.R. 5243 (a bill 
addressing the widow penalty'' for one individual widow, Kumi 
Iizuka-Barcena) on the same day that the Subcommittee ordered 
H.R. 6034 favorably reported. And the private bills are only a 
fraction of the spouses and families who experience this 
problem--currently, at least 100 spouses.
    In another case brought to the attention of the Committee, 
a U.S. citizen from Virginia, the mother of a deceased soldier, 
has sought Congressional help to keep her daughter-in-law and 
grandchild from being deported due to the ``widow penalty.'' 
She not only mourns the loss of her son, she also faces the 
potential loss of her daughter-in-law and the U.S. citizen 
grandchild left behind after her son's death. Her son fell in 
love and married a foreign spouse, but he passed away soon 
after the birth of their child, leaving the widow with no way 
to adjust her immigration status.
    In yet another case, which has been the subject of private 
bills in the 108th and 109th Congresses, Maria Moncayo-Gigax, a 
citizen of Ecuador, married John Gigax, a U.S. Border Patrol 
Agent, on August 28, 1998. Sadly, on November 7, 1999, Mr. 
Gigax was killed in the line of duty. The former Immigration 
and Naturalization Service (INS) had not adjudicated the 
immigration petition before Mr. Gigax had passed away, thus 
exposing Ms. Moncayo-Gigax to deportation. She has since 
received a stay of deportation, but she could be deported at 
any time if the stay is lifted.
    In another private bill introduced in the Senate in the 
109th and 110th Congresses, a young woman named Jacqueline met 
Marlin Coats, the love of her life, in 2004 while studying at 
San Jose State University as a foreign student. She and Mr. 
Coats, a U.S. citizen, were later married in 2006. Soon after 
signing the petition to obtain permanent residency for his 
wife, he drowned while trying to rescue two young boys off San 
Francisco's Ocean Beach. Although Mr. Coats was a former 
lifeguard, he was caught in a riptide current during the rescue 
attempt. Mrs. Coats now faces deportation.
    H.R. 6034 would end the ``widow penalty'' by allowing the 
petition for permanent residency of a widow or widower to 
continue despite the death of the U.S. citizen petitioner. It 
would also allow widows and widowers to self-petition if a 
petition was not filed before the death of the U.S. citizen 
spouse.

                                Hearings

    The Committee held no hearings on H.R. 6034.

                        Committee Consideration

    On July 10, 2008, the Subcommittee on Immigration, 
Citizenship, Refugees, Border Security, and International Law 
met in open session and ordered the bill, H.R. 6034, favorably 
reported, without amendment, by a voice vote, a quorum being 
present. On July 16, 2008, the Committee met in open session 
and ordered the bill, H.R. 6034, favorably reported with an 
amendment, by a voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that there 
were no recorded votes during the Committees consideration of 
H.R. 6034.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

                        Committee Cost Estimate

    A Congressional Budget Office (CBO) estimate of the costs 
of implementing H.R. 6034 as reported by the Committee on the 
Judiciary was not available as of the time of filing this 
report. Nor was any useful agency estimate of these costs 
available.
    In compliance with clause 3(d)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee estimates the 
costs as follows:

Cost to the Federal Government

    The Committee does not anticipate that the bill will have 
any significant effect on the federal budget in terms of the 
immigration cases themselves. The bill would simply make the 
widows of U.S. citizens eligible to continue the petition for 
legal permanent residency upon the death of the U.S. citizen 
spouse or allow them to self-petition. The Committee expects 
that the cases of those who do so apply can be handled with 
existing resources.
    Data as to the number of beneficiaries under the bill and 
the number who would be eligible to, and who would elect to, 
apply for the immigration benefits provided under the bill is 
not available. However, the Committee believes there would be 
approximately 100 widows per year who would be eligible for 
such benefits. In addition, the Committee believes that the 
bill may increase certain costs to the federal government 
relating to programs in which legal immigrants and citizens may 
become eligible to participate. These costs would recur 
annually and indefinitely, and could be expected to vary from 
year to year, and to be offset, partially or fully, by 
increased tax revenue as the persons become legally entitled to 
work in the United States. It is not practicable, at this time, 
to estimate the net costs to the federal government.

                    Performance Goals and Objectives

    The Committee states, pursuant to clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives, that H.R. 
6034 would end the ``widow penalty'' in immigration law by 
allowing the petition for permanent residency of a widow or 
widower to continue despite the death of the U.S. citizen 
petitioner. It would also allow widows and widowers to self-
petition if a petition was not filed before the death of the 
U.S. citizen spouse.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article in article I, section 8, clause 4 
of the Constitution.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 6034 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.

Sec. 1. Relief for surviving spouses.

    Subsection (a) of section 1 allows spouses of U.S. citizens 
who die before 2 years of marriage to remain an Immediate 
Relative for immigration purposes if the spouse can prove by a 
preponderance of the evidence that they were married in good 
faith.
    Subsection (b) of section 1 provides that the amendment 
made by subsection (a) shall apply to all applications and 
petitions that are pending on or after the date of the 
enactment. It further provides that where the U.S. citizen 
spouse died before that date, and the immigrant spouse is 
otherwise eligible for Immediate Relative status under 
subsection (a), the immigrant spouse has 2 years from that date 
to file the petition for Immediate Relative status.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

SECTION 201 OF THE IMMIGRATION AND NATIONALITY ACT

           *       *       *       *       *       *       *



                     WORLDWIDE LEVEL OF IMMIGRATION

  Sec. 201. (a) * * *
  (b) Aliens Not Subject to Direct Numerical Limitations.--
Aliens described in this subsection, who are not subject to the 
worldwide levels or numerical limitations of subsection (a), 
are as follows:
          (1) * * *
          (2)(A)(i) Immediate relatives.--For purposes of this 
        subsection, the term ``immediate relatives'' means the 
        children, spouses, and parents of a citizen of the 
        United States, except that, in the case of parents, 
        such citizens shall be at least 21 years of age. In the 
        case of an alien who was the spouse of a citizen of the 
        United States for at least 2 years at the time of the 
        citizen's death (or, if married 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) and was 
        not legally separated from the citizen at the time of 
        the citizen's death, the alien (and each child of the 
        alien) shall be considered, for purposes of this 
        subsection, to remain an immediate relative after the 
        date of the citizen's death but only if the spouse 
        files a petition under section 204(a)(1)(A)(ii) within 
        2 years after such date and only until the date the 
        spouse remarries. For purposes of this clause, an alien 
        who has filed a petition under clause (iii) or (iv) of 
        section 204(a)(1)(A) of this Act remains an immediate 
        relative in the event that the United States citizen 
        spouse or parent loses United States citizenship on 
        account of the abuse.

           *       *       *       *       *       *       *


                                  
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