Married by Phone: Marine Widow to Get Legal Status After Congress Acts

Dec. 16, 2010— -- When Hotaru Nakama and Marine Sgt. Michael Ferschke tied the knot in July 2008, they weren't even on the same continent.

Nakama was in Okinawa, Japan, where the couple met and spent 13 months together, and Ferschke was in Iraq on deployment with his unit. Thousands of miles apart, the couple read their vows over the phone and signed affidavits simultaneously.

Then, one month after their proxy wedding, Ferschke was killed while on patrol north of Baghdad. And Hotaru, who was pregnant with their child, applied to move to the U.S. to join her husband's family and raise her child.

For the past two years, the U.S. government has repeatedly denied the widow's applications for legal residency, under an unusual provision in immigration law designed to prevent citizenship by marriage fraud.

But Congress took the highly unusual step Wednesday of rectifying the case, passing a private law in Ferschke's name to grant her a special exemption and pathway to legal residency in the U.S. The bill now awaits President Obama's signature.

"We're thrilled," Mike Ferschke, the father-in-law of Hotaru, told ABC News. "She'll be coming home for Christmas, and we can't wait to see her and Mikey."

Ferschke described the years-long ordeal as an "injustice" to a military widow, and slap in the face to a family who lost their son.

Federal law requires marriage between an American and foreign national to be "consummated" in person after the ceremony in order to be eligible to apply for legal residency and a path for citizenship. The marriage also needs to last for at least two years.

"They wouldn't let her work, she couldn't go to school, so she had to go back to Japan," he said. "She really wanted to raise her son here."

Hotaru's son, "Mikey," who turns two next month, was born on U.S. soil after several Tennessee lawmakers intervened to get Hotaru a temporary visa to enter the U.S. to give birth. But then Hotaru was forced to return to Japan with her child.

"This couple consummated before their ceremony, and that's perfectly legitimate," said Kimberly Schaefer, a Washington, D.C.-based immigration lawyer and former Marine. "It would be nice if immigration law would allow situations like this one to be put in context, but unfortunately, the law just isn't fair all the time."

Schaefer acknowledged that it's understandable for the U.S. Citizenship and Immigration Service, which processes the applications, to scrutinize couples with a foreign spouse because of high risk for fraud.

Last year 227,000 foreign nationals obtained green cards through marriage -- more than any other category of applicant, according to USCIS. The agency uncovered and denied more than 600 fraudulent green card applications for foreign spouses between 2007 and 2009, according to the most recent statistics.

"But when you look at where this couple met, and that they had a child, and the father was deployed to combat – those are legitimate reasons for a proxy," said Schaefer. "There really shouldn't have been red flags in this case."

Congressional passage of a private bill for Hotaru is extraordinary, particularly given all the other legislative issues facing the House and Senate before the end of the year.

Private laws -- pieces of stand-alone legislation that apply only to specific individuals, families or corporations – are also extremely rare.

They have granted citizenship to illegal immigrants, waived personal debts owed to the government and bestowed federal health care and retirement benefits to employees or spouses who might not otherwise have qualified. But Congress has not passed a single private law since 2006, when only one similar bill was approved.

"This is something that everyone has wanted to support all through this process, and it is a great moment for this family," Rep. John Duncan, R-Tenn., who sponsored the bill, said in a statement. "Helping people caught up in extraordinary circumstances like the Ferschke's is one of the most basic and important jobs of Congress, and I am so grateful for all the bipartisan support in the House and Senate."

Ferschke said Hotaru has been working for the Japanese government at the U.S. airbase in Okinawa and will likely reunite with the family in Tennessee soon.

"I would love it if they came back to the states," he said. "Since my son got killed and stuff, she called here and tried to do the paperwork to move. But now it could finally come true."