DHS Suspends Provision Designed to Prevent Marriage Fraud

The Department of Homeland Security (DHS) announced last Tuesday, June 9 that it was delaying for two years the enforcement of a rule designed to prevent marriage fraud. (DHS Press Release, June 9, 2009). Under current law, a citizen may petition for a green card on behalf of his or her alien spouse. In cases where the citizen and the alien have been married for less than two years, the alien is issued a "conditional" green card for a period of two years. If the citizen-spouse dies before the couple has been married for two years, the alien, and the alien's minor children are subject to removal. According to the United States Citizenship and Immigration Services website, the "conditional" status is designed to make sure that an immigrant can "prove that [they] did not get married [fraudulently] to evade the immigration laws of the United States." (USCIS website). According to another source, "The only way Congress could figure out how to detect potentially fraudulent marriages was to put a two year limit on green cards issued to spouses in marriages that were less than two years old." (Heather Poole, PC).

The new DHS policy seeks to prevent Immigration and Customs Enforcement (ICE) from deporting the alien spouse (and minor children), even though they no longer have a living sponsor who is an American citizen or familial ties to the U.S. Estimates suggest that the impact of the new directive will be relatively small; however, these estimates do not take into account the additional impact of so-called "chain-migration" as a result of the widowed alien eventually being permitted to petition for his or her relatives to come to the United States. (The Wall Street Journal, June 10, 2009).

Last week's announcement raises questions as to whether Congress will pursue legislation to amend the Immigration and Nationality Act to permit surviving spouses to remain indefinitely in the U.S. after the citizen spouse dies in order to seek a green card. (DHS Press Release, June 9, 2009). Legislation such as this was considered in the previous Congress. (See House Judiciary Immigration Subcommittee Markup and H.R. 6034 Legislative Text). Immigration attorney and Bender's Immigration Bulletin editor Dan Kowalski told The Wall Street Journal that the new directive "hedges [President] Obama's bets: If comprehensive [immigration] reform advances, this will help pave the way. If not, at least he can say he tried." (The Wall Street Journal, June 10, 2009).

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