79–006 

110TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 110–911 

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. 


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(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. 


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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. 


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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 


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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 


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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. 

* * * * * * * 

Æ 


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