New Provision to Benefit “Self-Petitioning” Battered Spouses
March 8, 2002

Thanks to various pieces of legislation enacted over the past decade, immigrants in the U.S. seeking lawful permanent residence (or “green card” status) by way of their marriage to a U.S. citizen or permanent resident are far less beholden to their U.S. spouses, especially when they are the victims of domestic abuse. Far too often, those counting on their U.S. spouse to file paperwork to facilitate the processing of their U.S. immigrant status were powerless and entirely subject to their spouse’s whim and control. And most recently the Battered Immigrant Women Protection Act (“BIWPA”) corrected certain technical deficiencies existing in previous legislation designed to protect battered spouses and INS Headquarters in Washington, D.C. has taken measures to make sure INS District Offices across the nation are aware of the changes.

Pursuant to provisions contained in the Violence Against Women Act enacted several years ago, individuals living in the U.S., legally or illegally, who are subject to physical abuse or extreme mental cruelty by their U.S. citizen or permanent resident spouse do not have to rely on their U.S. citizen spouses to execute and file paperwork on their behalf in order to be granted permanent residence in the U.S. Such individuals became eligible to start their immigrant processing, regardless of their U.S. citizen spouse’s agenda or wishes. Up until the recent enactment of BIWPA, however, the battered alien was required to have been legally married to their U.S. spouse at the time the self-petition was commenced. This is no longer the case.

Therefore, in order for a battered alien to now be considered for U.S. permanent residence, they need to demonstrate that they are now legally married, OR HAD BEEN MARRIED to their U.S. spouse at some point during the 2 year period prior to commencing the self-petition process. Additionally, for those already divorced, the battered alien must also demonstrate that their divorce arose as a result of their being victimized by their U.S. spouse.

Of course, other documentation must be presented, including:

• Evidence that the marriage was entered into in good faith (not for the sole purpose of obtaining an immigration benefit), and that the applicant resided with their abusive U.S. citizen spouse at some point. Evidence can include affidavits from witnesses, especially when no other evidence is available,
• Evidence that the U.S. citizen or permanent resident spouse was physically abusive or inflicted extreme mental abuse, including police reports, photos, physicians and/or counselor’s reports, restraining orders, and witness affidavits.
• Evidence of the applicant’s good moral character, as detailed in affidavits from friends, family, employers, etc.

It is also important to note that spouses of U.S. citizens who have already obtained their first “green card”, and granted a 2 year “conditional lawful permanent residence” based on, what was previously a happy marriage, continue to also have the option to institute the procedure to remove their condition without the cooperation of their U.S. citizen spouse. The I-751 waiver petition to facilitate the conversion of a U.S. immigrant’s status from conditional to permanent, continues to be an option for applicants who can demonstrate that the marriage was entered into in good faith OR were the victim of physical abuse or extreme mental cruelty.

New Poverty Guidelines for Affidavits of Support Submitted As of April 1, 2002

For those supplying I-864 Affidavits of Support for a family based immigrant visa or adjustment of status applicant, new income requirements will be in effect starting April 1, 2002.

For all U.S. states, excluding Alaska and Hawaii, those supplying Affidavits of Support, must demonstrate income above the following cut-offs (125% of the poverty level):

For family units with more than 8 members, add $3,850.00 for each additional member in arriving at applicable income requirement cut off.