Published: November 3, 2012
The battered spouse, whether a man or woman, is a protected class in the world of immigration law. Sensing that foreign nationals who marry U.S. citizens or residents can become vulnerable to the U.S. spouse’s physical or extreme mental abuse, Congress enacted a variety of laws aimed at protecting these foreign nationals. These laws create avenues for the foreign national to obtain U.S. resident status, no matter the cooperation or support of the abusive U.S. citizen. The avenues are available in the following contexts:
I-360, Battered Spouse Self Petition (for those not yet issued a green card):
Whether the foreign national is in lawful nonimmigrant (temporary) status, overstayed their nonimmigrant status, or entered without a visa in the first place, the I-360 Battered Spouse Self Petition can be a vehicle for a battered spouse to obtain U.S permanent residence, and again, without the assistance or support of their U.S. spouse. Battered spouse self-petitioners must be of “good moral character”, and document their petitions with one or more of the following types evidence: 1) their own detailed affidavits, as well as those of witnesses to the abuse, 2) hospital or police records, 3) order of protection, 4) records detailing any therapy or other mental health services sought by the abused spouse, 5) photographs of any physical injury, 6) affidavits from clergyman. With the approval of a Battered Spouse Self Petition, the foreign national has a direct path to proceed with an I-485, Application to Adjust Status to Permanent Resident.
I-751, Waiver of Joint Petition to Remove Conditional Basis on Permanent Residence (for those issued only a 2 year, conditional green card)
When a foreign national is first accorded resident (green card) status based on marriage, it’s usually for only a 2 year conditional period. At the end of this period, ideally the marriage is intact, and the husband and wife file a Joint, I-751 to confirm and document their cohabitation at time of filing and for the two years following conditional green card issuance. However, when the marriage does not work out, including when the foreign national has been the victim of the U.S. spouse’s physical or extreme mental abuse, a waiver, or an excusing, of the joint petition, is available, and where only the immigrant spouse’s signature is required. An I-751 waiver request will be granted when the foreign national can prove:
a) that the underlying marriage has been dissolved and that the relationship was entered into good faith and not just for the purpose of obtaining immigration benefits,
b) that the denial of the waiver request would result in extreme hardship to the applicant and their family, OR
c) the applicant is a battered spouse and was the victim of physical abuse or extreme mental cruelty at the hands of their U.S. petitioning spouse.
In support of the waiver request, the applicant should be ready to submit documentation, if available, reflecting that for at least some period of time the couple shared a residence, such as joint bank account statements, tax returns, insurance records, credit account statements, photos or other documentation reflecting a shared residence or cohabitation is helpful.
Even more important to waiver filings submitted on a battered spouse basis – as is the case with the self-petition discussed above, is the inclusion of detailed affidavits from the applicant, witnesses and sometimes even a mental health professional, attesting to the sincerity of the marriage and the abuse inflicted upon the foreign national by their US spouse. These affidavits are especially valuable when the joint residence documentation described above is not available – as is not uncommon when the marriage at issue is filled with turbulence or disharmony.
Cancellation of Removal for Battered Spouses: If the foreign national is placed in removal proceedings after, for example, the underlying marriage based application is withdrawn by the US spouse – leading to the denial of the green card application, the foreign national also has the option of applying for Cancellation of Removal as a Battered Spouse before the Immigration Court. This application, if approved, also leads to the foreign national being accorded resident status, with the decision on such an application resting with the Immigration Judge. This application involves many of the same requirements as the I-360 Battered Spouse Self Petition, although applicants for Battered Spouse Cancellation of Removal also must document their physical presence in the U.S. for a three year period leading up to their application AND that their removal from the U.S. would cause them, their child, or their parent, “extreme hardship.” Importantly, battered spouses awaiting a final court date for a hearing on their Battered Spouse Cancellation applications (sometimes up to 2 years), are eligible to receive an employment authorization document.
Obtaining approval of any of these types of immigration filings is never easy. However, half the battle for so many foreign nationals in most any immigration law quandary is getting straight information about their options, and simply knowing which options exist and which do not.
PUBLISHED November 3, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois