| Immigration Issues |
| There are a number of ways in which an individual can obtain legal immigration in the U.S. (i.e. become a "green card" holder or "lawful permanent resident"). This material focuses on means which are available to battered immigrant women. |
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Introduction to Family Based Immigration:
By far, the most common means of immigrating is through the family-based immigration process. This process allows for a U.S. citizen (USC) or lawful permanent resident (LPR) to petition for an immigrant visa for certain relatives such as spouses and children. In addition to the filing and approval of an immigrant visa itself. There are two different ways to completing the next step, either adjustment or status or consular processing. Each requires an individual to meet certain requirements under the law, but which one she will use will depend on several factors. Because of the numerous changes made to the law in 1996, any individual who is seeking to immigrate to the U.S. is strongly allowed encouraged to consult with an experienced immigration practitioner before applying to the Immigration and Naturalization Service (the "INS"). |
| An individual who successfully completes these steps will obtain status as a lawful permanent resident, and thereby gain the right to live and work in the U.S. legally. Traditionally, this process has been solely controlled by the petitioning legal spouse, as he had sole discretion as to whether and when to file a visa petition, and whether to assist his spouse or child in completing the process of obtaining the actual visa. Clearly, this discretion created a significant and dangerous imbalance of power in immigrant households where domestic violence was involved. As a result, Congress passed two amendments which attempt to remove this element of control and assist undocumented battered spouses and children in obtaining protection and independence from their abusers. Battered women who meet the requirements of these and the other remedies described below may be eligible for immigration relief and be able to break free from the cycle of domestic violence. |
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A. Removal of Conditional Status
The first of these changes involves the issue of conditional residence status. In addition to the basic immigration process outlined above, the U.S. immigration laws impose a special requirement for individuals married to U.S. citizens. Any individual who immigrates to the U.S. based upon marriage to a U.S. citizen which is less than two years old at the time residence is granted, will receive conditional residence status (as opposed to status as a lawful "permanent" resident). The "conditional" nature of this status may be removed and replaced with "permanent" resident status after two years, by filing a joint petition by the spouses and a showing that the marriage was in fact, bona fide or in good faith. This two year conditional period of residence was intended to prevent marriage fraud. However, where domestic violence was involved, it simply left women in a situation where they were dependent on their abusive spouses to remove the condition on their residence. |
| To address this problem, Congress created a waiver of the joint petition requirement, which enables battered immigrant women to remove the conditional nature of their legal status and obtain permanent resident status without their abuser's assistance. In order to do so, a battered woman must show that she: |
- Is the spouse of a U.S. citizen with conditional resident status
- Entered into the marriage in good faith and;
- Has been battered or subject to extreme cruelty by the USC during the marriage
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| Waivers of the joint filing requirement can also be submitted where a woman can demonstrate that the marriage was entered into in good faith, but has terminated by death or divorce, or where she would suffer extreme hardship if she was deported to the home country. A battered woman who has conditional residence will often apply for the waiver under several grounds at once, often where she was abused and the marriage has ended in divorce before the two-year period has expired. These waivers enable abused women with conditional residence status to obtain legal status on their own and break free of an abusive home environment. |
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B. Self-Petitioning under the Violence Against Women Act:
There are some women however, who have never had any visa petition filed on their behalf, and remain in the U.S. without any documents and without hope of independence from their abusive household. Such women are often kept captive by their abuser's threats to expose them to the INS and have them deported and separated from their children. These women may benefit from recently enacted legislation known as the Violence Against Women Act ("VAWA"). VAWA enables undocumented battered women and children to "self-petition" for permanent residence without any assistance from their abuser, if they can meet the statutory requirements. In order to do so, a battered woman must show that she: |
- Is the spouse of a USC or LPR of the U.S.
- Entered into the marriage in good faith
- Is residing in the United States
- Has resided with the USC or LPR in the United States at some time
- Is a person of good moral character
- Has been battered or subject to extreme cruelty during the marriage, and
- Is a person whose deportation would result in extreme hardship to herself and her child
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| The self-petition allows a battered spouse to file a petition for herself, instead of relying on her batterer to do it for her. Divorce which occurs before the self-petition is approved renders a battered woman ineligible for this relief. Women who can get an approved self-petition can obtain work authorization, and if eligible, can ultimately obtain permanent residence status. |
- Joint checking or savings account
- Joint tax returns
- Tax return with client named as dependent
- Photo IDs with her new name on them
- Declarations from friends & neighbors
- Membership applications
- Life or health insurance policy
- Correspondence between spouses
- Correspondence addressed to couple Utility bills
- Letter from landlord
- Rent receipts
- Letter from employer stating the client changed her name or listed the abuser as the contact in emergencies
- Joint car ownership
- Credit cards
- Vacations taken together
- Major purchases made together
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| *Footnote: The provisions apply to both U.S. citizens and lawful permanent residents. However, as a practical matter, spouses of LPR's do not fall within these provisions since current visa backlogs require them to wait longer than two years for available visa, and thus the marriage is always more than two years old when residence is granted. |
