Hope for Battered Spouses
Many people who come to the United States eventually fall in love and marry a United States citizen or lawful permanent resident through whom they hope to obtain their own lawful permanent residency. It is an unfortunate but sad reality that in some cases after a petitioner has submitted an application on their spouse’s behalf to US Citizenship & Immigration Services, the petitioner uses the situation to place themselves in a position of power over their spouse who needs legal status. Too often, this can lead to the petitioner becoming physically, mentally, emotionally, or sexually abusive against their spouse. The petitioner frightens their spouse into silence and into remaining in the marriage by threatening to turn them in to immigration or to withdraw the petition. These threats leave the spouse who does not have lawful status feeling isolated, afraid, and in serious danger of permanent physical or emotional trauma.
This grim scenario has been recognized as a problematic one by Congress. Congress has recognized that women and men who are being physically or emotionally abused by their spouses should not be forced by their lack of legal documentation to remain in a dangerous relationship simply to obtain lawful residency. In several important pieces of legislation, most notably the Violence Against Women Act of 1994 (VAWA), critical changes were put into place to protect individuals who find themselves in this intolerable situation.
The law states that certain battered or abused spouses of United States citizens or lawful permanent residents can self-petition for their green cards. Battered or abused children or stepchildren of United States citizens or lawful permanent residents are also eligible to self-petition. Finally, the spouse of a United States citizen or lawful permanent resident whose child has been battered or subjected to extreme cruelty can self-petition for both the child and themselves.
There are several requirements that one must be able to demonstrate in order to have a self-petition approved. For a spouse to self-petition they must be able to show that they are married to a US citizen or lawful permanent resident, that the marriage was entered into in good faith and was a bona fide marriage, that the self-petitioner was subjected to battery or extreme cruelty during the marriage, that the self-petitioner resided with the abuser, and that the self-petitioner can demonstrate good moral character for the three years prior to filing the self-petition. The requirements for children to self-petition are essentially the same except that the child must prove that he or she is the child or stepchild of a US citizen or lawful permanent resident parent.
It is very important that a self-petitioner be able to thoroughly document their case and be able to demonstrate to USCIS that they can satisfy each of the above requirements.
In order to show that a self-petitioner was married to a US citizen or green card holder, the self-petitioner should submit copies of the following documents: marriage certificate, proof of termination of any prior marriages for either spouse, spouse’s US birth certificate, US passport, naturalization certificate, or green card. If an immigrant petition was submitted by the abusive spouse, a copy of the petition, fee receipt or approval notice should be included as well.
In order to show that the marriage was entered into in good faith and was a bona fide one, the self-petitioner can submit copies of the following types of documents: birth certificates of children born of the relationship; lease agreement, joint documents such as bank accounts, credit card accounts, tax returns, car insurance, health insurance, utility bills, etc; letters and cards exchanged; and family photographs. Many of these documents will also serve to establish that the self-petitioner resided with their spouse during the marriage.
In order to demonstrate good moral character for the three years prior to filing the self-petition, the self-petitioner needs to obtain a police clearance or good conduct certificate from each jurisdiction in which they have lived for more than six months during the three-year period. Depending on when the self-petitioner entered the United States, this may include obtaining a police clearance from their home country as well as from jurisdictions within the United States. In addition to the clearances, the self-petitioner should write a declaration of good moral character and have a few other individuals write similar declarations attesting to the self-petitioner’s good moral character.
Clearly, one of the most crucial aspects of this type of a case is proving that the battery or extreme cruelty actually took place. Battery or extreme cruelty is a term that includes a range of physical, mental and emotional abuse and cruelty. It can encompass actions by your spouse such as: threats to beat you or your children; hitting, punching, slapping, kicking or pushing you or your children; emotionally abusing you such as insulting you; forcing you to take part in sexual activities when you do not want to; threatening to take your children away from you; controlling where you go, who you see, and your access to money.
Documentation to establish battery or extreme cruelty can include the following: orders of protection against the abusive spouse; police reports; criminal court records if the abuser was arrested; medical records documenting any physical injuries; medical/counseling records demonstrating any treatment for depression or ongoing therapy due to emotional abuse; domestic violence shelter records; photographs of any injuries inflicted by the abuser; affidavits from friends or family members who have firsthand knowledge of the battery or extreme cruelty. These affidavits should include a detailed description about the battery or cruelty that they witnessed or that they were told about.
The final important document to include in a self-petition is a detailed statement signed by the self-petitioner specifying the history of abuse in the marital relationship. This should include information regarding dates, times of day, locations of incidents that occurred as well as the details about the incidents themselves. If a self-petition is based on extreme cruelty, USCIS is looking for evidence that deals with how the abuser’s conduct impacted on the quality of life of the self-petitioner or her ability to function. Therefore, the statement should include not only a description of what the abusive spouse did, but also how the self-petitioner felt as a result of the abuser’s actions or behavior. The self-petitioner should explain what was done to them, how it made them feel, and the results.
If someone is already divorced from their US citizen or lawful permanent resident spouse, they cannot self-petition under VAWA unless they have been divorced for less than two years by the time the self-petition is filed and they can demonstrate that the basis for the divorce was the abuse. However, the abuse does not need to be listed as the specific ground for the divorce in order to meet this standard. A self-petitioner can prove that it was the basis for the divorce through other evidence as well.
When the spouse of a US citizen self-petitions, they are eligible to apply to adjust status and for their employment authorization document at the same time as they file the self-petition.
Unfortunately, spouses of lawful permanent residents can only file the self-petition until such time as their priority date is current and a visa number becomes available to them. If the abuser had filed an Immigrant Petition for the self-petitioner, the self-petitioner can keep the priority date established by the Immigrant Petition for use in their self-petition. This process may cut off a substantial amount of the waiting time. Also, once the self-petition is approved, the self-petitioner is placed in Deferred Action Status until they can apply to adjust their status. Deferred Action Status protects a self-petitioner from deportation and also makes a self-petitioner eligible to apply for an employment authorization card. Therefore, while waiting for the priority date to become current, a self-petitioner can obtain a work permit.
In addition, it is important to keep in mind, that if at any point during this process the abuser naturalizes, the self-petitioner is immediately upgraded to an immediate relative and can file the adjustment of status paperwork. The self-petitioner is upgraded even if they have already divorced the abuser. On the flip side, though, if an abuser loses their permanent resident status, the self-petitioner must be able to show that the abuser lost their status because of the abuse and not for other reasons such as fraud or criminal convictions unrelated to the abuse. If the self-petitioner cannot show that the loss of the abuser’s status was the abuse than they are no longer eligible to self-petition.
Self-petitions are adjudicated only at the Vermont Service Center. USCIS has spent quite a lot of time and effort intensively training approximately fifteen officers who review only VAWA cases. They are well educated in domestic abuse issues and the absolute need for discretion. The self-petition along with the supporting documents are treated as confidential by USCIS The abuser would never be able to access any paperwork regarding the self-petition and would not even be told that the self-petition had been filed. The abuser is not contacted by USCIS for any reason in connection with the self-petition. Privacy is further guaranteed to the self-petitioner in that the contact address provided to USCIS in connection with the petition can be a post office box or in care of an attorney’s office.
If you feel that you meet the guidelines described in this article to self-petition, it is highly recommended that you contact our office to meet with a qualified immigration attorney who can ensure that your application is properly documented and filed.