[House Report 110-911]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-911
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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.
* * * * * * *