I am pleased to announce that the Widow’s Penalty has finally come to an end.

The Congress recently approved the Department of Homeland Security Appropriations Conference Report (HR 2892), which included an amendment to abolish the Widow’s Penalty.  President Obama signed it into law.  The new law has finally end the Widow’s Penalty.

The new law means that the death of a U.S. citizen spouse will no longer result in automatic deportation of widows, widowers and their children.  The new law eliminates the two-year marriage requirement, permitting widows and widowers of U.S. citizens to apply for a green card for themselves and on behalf of their foreign-born children.  It is also retroactive so anyone qualifying for relief can file a petition for permanent residency up to two years after passage of the measure.

Tiffany U. Vivo is an Indianapolis immigration lawyer.  She also practices family law.  Ms. Vivo appears before the Immigration Court (EOIR), the United States Citizenship & Immigration Service (USCIS), the Board of Immigration Appeals (BIA) and state and federal courts in Indiana and Illinois.  She is a member of the Indiana State Bar, and the national and local chapters of the American Immigration Lawyers Association (AILA).   Her immigration law offices are located in Indianapolis, from where she serves immigration clients across the country.

MS. VIVO’S ANSWER:       Yes, you need a K1 or “Fiancée Visa.”  It takes some time to acquire a Fiancée Visa, and that process frustrating.  So, be patient and follow the instructions of a qualified and knowledgeable immigration attorney.

Often, a couple will have to wait up to six months before being granted preliminary approval from the United States Citizenship and Immigration Service (“USCIS”).  After approval, an application for a K1 Visa is sent to the National Visa Center and then finally, in the case of a Filipina fiancée visa application, to the United States Embassy in Manila.  Again, the process can be long and frustrating.  But, hopefully and is the case most often, the wait ultimately results in the issuance of a valid K1 fiancée visa.

After the visa is issued, engaged couples often become concerned about the information and dates printed on the visa itself.  For example, the visa states: “K-1 Petition Expires on MM DD, YYYY.”  Couples often mistakenly believe that this is the end of the visa’s validity.  What is really the case is that the visa is valid for travel to the USA until the expiration date expressly stated on the visa.  Usually, a K1 visa is issued with a validity of six months.  The Consular Officer adjudicating the case at the United States Embassy in Manila has discretion to issue a visa with a shorter validity period.

A K1 visa is valid for six months after it is issued.  After your fiancée arrives in the United States and after she is admitted at the port of entry, she is only entitled to 90 days presence in the United States.  If you and your fiancée get married, you should then apply for adjustment of her status.  She would be entitled to remain indefinitely, provided the adjustment of status is approved and any conditions are lifted.  

If you and your Filipina fiancée do not marry while she is in the United States, she will need to depart the U.S. before the visa’s expiration.

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Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000.  The worldwide level for annual employment-based preference immigrants is at least 140,000.  Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620.  The dependent area limit is set at 2%, or 7,320.

Tiffany U. Vivo is an Indianapolis immigration lawyer.  She also practices family law.  Ms. Vivo appears before the Immigration Court (EOIR), the United States Citizenship & Immigration Service (USCIS), the Board of Immigration Appeals (BIA) and state and federal courts in Indiana and Illinois.  She is a member of the Indiana State Bar, the Indianapolis Bar Association, and the national and local chapters of the American Immigration Lawyers Association (AILA).