When an American Citizen dies before a foreign fiancee has a chance to adjust status, the law is very arbitrary as it can deny US Immigration benefits to the widow of an American Citizen.
American Immigration law is very complex because it is based largely upon Federal statutes. Some facets of United States Immigration are very complex and one area which is very complicated occurs at the convergence of two events that no multi-national couple wants to think about: untimely demise and loss of lawful status in the USA.
In situations where a visa is based upon marriage to an American Citizen, in order for a foreign fiancee to ultimately acquire lawful permanent residence without conditions; the foreign spouse must pass through a series of due diligence inquiries in order for the government to be certain that the underlying marriage is genuine. To a certain extent, the US government begins scrutinizing a couple the moment a United States Citizen files an application to sponsor a foreign fiancee for a K1 visa. Upon preliminary approval, the file will be sent to the US Embassy or Consulate with jurisdiction over the foreign fiancee’s residence. The Consulate will interview the applicant and if satisfied that the marriage is genuine, they will issue a K1 visa. The non-Citizen fiance will subsequently be required to pass through a port of entry in the United States of America. Agents of the Department of Homeland Security will make certain that the entrant is not inadmissible.
After being lawfully admitted to the USA, the foreign fiancee will have 90 days to marry the American Citizen and adjust status to permanent residence. In most cases, the marriage is executed and the foreign spouse is approved for adjustment, thereby making her a conditional lawful permanent resident. Once two years has elapsed the non-Citizen Spouse and the Citizen Spouse will need to file to have the non-Citizen’s conditionality of residence lifted and thereby make the non-Citizen an unconditional lawful permanent resident. The “Widow’s Penalty” can come into play before either the approval of the adjustment of status or the approval of the petition to lift of conditions of residence. If the American Citizen spouse dies prior to the approval of either of these petitions, then it can create a difficult situation for the foreign spouse because the applicant no longer meets the requirement for a lifting of conditions or adjustment.
Therefore, the foreign widow could fall out of status because they are no longer married to an American. United States Federal Courts have tried to deal with this issue by interpreting the law in such a way that allows foreign widows to stay in America. The Department of Homeland Security has also taken measures to defer inspection of foreign widows and widowers in order to provide a sort of amnesty for those placed in such a difficult position.
This issue has not been fully dealt with as there are many conflicting interpretations of the current law. In general, the mood of the courts seems to be in favor of doing away with this so-called penalty because implementing the law in its current form leads to unfair outcomes for immigrants already present in the USA.