CONGRESSWOMAN ELISE STEFANIK
H.R. XXX is expected to be considered on the floor of the House on Monday, November 15, 2010, under a motion to suspend the rules, requiring a two-thirds majority vote for passage. The legislation was introduced on November 15, 2010 by Rep. Duncan (R-TN) and referred to the Committee on the Judiciary.
The bill would amend the Immigration and Nationality Act to provide an exception for a marriage that is unable to be consummated because of to physical separation due to active-duty service abroad in the Armed Forces.
Under the Immigration and Nationality Act, if a U.S. citizen dies while serving honorably in an active duty status in the Armed Forces as a result of injury or disease incurred in or aggravated by combat, the citizen’s alien spouse can still seek permanent residence as an immediate relative of a U.S. citizen. However, the INA also provides that the term spouse does “not include a spouse . . . by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated.”
Hotaru Ferschke is the widow of the late Marine Corps Sergeant Michael Ferschke. Hotaru was born in Okinawa, Japan, and met Sgt. Ferschke there in 2007, where he was stationed at Camp Schwab. The couple dated for more than a year before he deployed to Iraq on April 15, 2008. The couple learned Hotaru was pregnant in March 2008, shortly before he deployed to Iraq. They had planned to marry before she became pregnant. Mr. Ferschke and Hotaru were married “by proxy” via telephone on July 10, 2008, while Sgt. Ferschke was in Iraq. They were never able to see each other after their marriage because Sgt. Ferschke was killed in combat on August 10, 2008.
The Ferschke’s marriage is not recognized for immigration purposes because it was never consummated. However, the State Department and the Marine Corps both agree that the relationship was bona fide.
The bill is intended to help Hotaru and other widows in this situation. It would provide an exception to the consummation requirement where the failure to consummate the marriage was caused by physical separation due to the deployment of one of the spouses in an active duty status overseas in the United States Armed Forces.