Will Congress End the Immigration 'Widow Penalty'?

  • Share
  • Read Later
Courtsey Diana Engstrom

Diana and Todd Engstrom and his son Dalton on the couple's wedding day.

It was bad enough that Natalia Goukassian, then 21, had to spend her honeymoon in June 2006 in West Palm Beach, Fla., helping her husband Tigran find alternative treatments for connective tissue sarcoma, an aggressive cancer, or that six months later, the Air Force–enlisted man, 21, succumbed to the disease. But as it turned out, her painful ordeal had only just begun. While the Veteran Affairs Department deemed the Russian immigrant (not yet a legal resident) eligible for surviving-spouse benefits, immigration officials at Homeland Security took a very different view: at Natalia's interview for legal residence the next year, she was told that because she hadn't been married long enough before Tigran died, she would be deported. "To hit you with that when you've lost someone you loved and you're feeling desperate, to not consider me a spouse because my husband had died," says Natalia, now 24 and an accounting student at the University of Central Florida in Orlando, "it seemed the coldest bureaucratic thing ever."

Homeland Security Secretary Janet Napolitano has acknowledged complaints like Goukassian's. Earlier this month, Napolitano, facing a growing number of lawsuits stemming from the so-called widow penalty in U.S. immigration regulations, suspended the rule's enforcement. "Smart immigration policy balances strong enforcement practices with commonsense, practical solutions to complicated issues," she said. Critics have been harsher, suggesting that imposing the provision made authorities look petty if not heartless.

But some on Capitol Hill don't think a temporary measure goes far enough. On June 23, Florida Senator Bill Nelson and Massachusetts Representative Jim McGovern introduced legislation, the Fairness to Surviving Spouses Act, that would nix the widow penalty for good. To leverage their message, they were joined by both Goukassian and another military widow, Diana Engstrom, whose husband was killed in Iraq in 2004 in a rocket-propelled-grenade attack. Engstrom, a Kosovo native, found out afterward that she, too, would be deported because she'd been married for less than the two years required for an immigrant spouse's legal residence eligibility.

The legislation may seem a sure bet, but anti-immigration sentiment still runs hot enough in Congress to make passage of the Nelson-McGovern bill a real challenge; and it's likely a big reason the Obama Administration, which is cautiously trying to revive immigration reform, hasn't completely done away with the widow penalty on its own yet. Conservative immigration think tanks like the Center for Immigration Studies in Washington, for example, say the rule is a sensible safeguard against rampant marriage fraud, sham matrimonies between a U.S. citizen and a foreigner solely to get the latter a green card or legal residence.

"I feel bad for the widows — I've lost a spouse myself. But any measure that doesn't uphold the [two-year marriage] condition would further compromise the integrity of our immigration laws," says Michael Cutler, a Center for Immigration Studies fellow and former federal immigration-fraud investigator. "We forget here that the green card for the alien spouse was meant as an accommodation for the U.S. citizen spouse, and that most alien spouses are being supported by the citizen spouse. When the citizen dies, should the U.S. assume the burden of supporting the alien?"

Brent Renison, an Oregon immigration attorney who has headed up numerous suits challenging the widow penalty, calls the marriage-fraud argument bogus. "We've never asked for automatic approval of these widows' legal residence status," he says. "We simply ask that they be allowed to show that their marriages were valid, and if so, recognize that the humane thing to do is let them stay where they've made a new life." That's especially true, Renison insists, when the surviving spouse has a U.S.-born child from the marriage. In one of the more controversial cases, a Brazilian woman whose U.S. husband died in his sleep of heart complications was handed a deportation order despite having a 5-month-old, U.S.-citizen son.

There are almost 300 known widow-penalty cases in the U.S. today, though lawyers like Renison believe there are hundreds if not thousands of other widows and widowers in similar situations who haven't yet approached immigration authorities. Of the documented cases, about a quarter are estimated to involve children. If the numbers don't seem overwhelming, Renison argues that's precisely the point: the dogged pursuit of such cases gives immigration enforcement the kind of spiteful, Javert-like image that it certainly doesn't need. Immigration officials counter that they're simply enforcing the law. But "consider all the genuinely serious immigration issues facing this country, and then consider how much time and money we've been spending deporting these widows," says Renison. "[The widows] followed the rules, and yet they're being punished for something completely beyond their control."

The courts are increasingly siding with the widows as well. In April, a federal judge in Los Angeles told Homeland Security to reopen the cases of 22 immigrants denied green cards because their U.S. spouses had died, ruling that the deaths should not nullify the widows' (or widowers') legal residence applications. But there have been judicial defeats for the widows as well — some judges have ruled, understandably, that current immigration law ties their hands — which is why some people are relying on legislation like Nelson-McGovern.

Goukassian, who says she has thus far been able to get her deportation deferred, is not yet part of a suit herself. She says she feels confident that Congress will decide the widows "have the truth on our side." Still, she fears there is a culture inside the U.S. immigration bureaucracy that assumes foreign spouses are merely green-card gold diggers. (To be fair, immigration agents do confront myriad scam artists, male and female.) She and Tigran were genuinely in love, she says, because they were "Russian soul mates" — he was born in Russia and came to America as a child with his parents — who met a year after she arrived in the U.S. on a visitor's visa to improve her English-language interpreter skills.

If such couples are indeed soul mates, say widow-penalty opponents, then the immigration rule simply defies any sense of fairness. But to get the Nelson-McGovern bill through Congress, they'll probably have to convince immigration conservatives that making the death of an American spouse a reason for the deportation of a non-American spouse is downright un-American.