By, Richard Hanus, Esq.
Published October 31, 2021
In the world of U.S. immigration law, a foreign national battered husband or wife, and sometimes child, may be eligible for special immigration benefits, including permanent resident status – and all without the cooperation of their abusive U.S. citizen or resident spouse or parent. Indeed, foreign nationals who marry U.S. citizens or residents are often vulnerable to the whims, cruelty and even brutality of their U.S. spouse, and accordingly, Congress enacted a variety of laws aimed at protecting these foreign nationals. The following is a summary of the legal options available to achieve resident status in such circumstances:
I-360, Battered Spouse Self Petition (for those not yet issued a green card): No matter the legal status of the foreign national in question – whether they overstayed their visa, or entered without a visa in the first place, the I-360 Battered Spouse Self Petition is often a viable avenue for a battered spouse to obtain U.S permanent residence, or “green card” status – and again, without the assistance or support of their abusive U.S. spouse. Those filing battered spouse “self-petitions” must establish their good moral character and present one or more of the following types of supporting documents: 1) detailed affidavits – including their own, as well as witnesses, to the abuse or the aftermath of the abuse suffered by the foreign national, 2) hospital records, 3) police reports, 4) domestic violence related orders of protection, 5) documentation reflecting mental health services or housing sought, such as counseling or shelter assistance 6) photographs capturing any physical injuries and 7) statements from clergyman.
The filing of an I-360 Battered Spouse Self Petition along with an I-485, Application to Adjust Status to Permanent Resident can set the table for the applicant to receive an employment authorization document within months of filing, and eventually, if all goes well, a green card.
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 initially approved for resident (green card) status based on marriage to a U.S. citizen, it is typically on a conditional basis and a 2 year period. By the time this 2 year period ends, the underlying marriage is hopefully intact and the parties are in a position to file a “Joint” I-751 petition to remove conditional basis on permanent residence. Such a filing should be supported with documentation confirming the parties cohabitation at time of filing and for the 2 year conditional resident period leading up to the filing.
However, if the marriage at issue falls apart, including when the foreign national becomes the victim of the U.S. spouse’s physical or extreme mental abuse, option are available including the filing for a waiver, or an excusing, of the joint petition requirement. In such a case, the cooperation of the abusive U.S. spouse becomes unnecessary, and accordingly, only the foreign national’s signature is required. An I-751 waiver petition will be approved when the foreign national is able to document one of the following: a) that the marriage at issue has been dissolved and that the underlying relationship was genuine and not entered into solely for the purpose of facilitating immigration benefits, b) that the denial of the waiver filing would cause the applicant and their family to experience extreme hardship, OR c) the applicant is the victim of their U.S. spouse’s physical abuse and/or extreme mental cruelty.
Supporting documentation that should be included with such filings, assuming available, include any paperwork detailing that the couple shared a residence for any period (the longer the better). For example, joint bank account statements, tax returns, insurance records, credit account statements, photos or other documentation reflecting that the couple shared a residence. For waiver filings premised upon their spouse’s physical or mental abuse – similar to the self-petition discussed above – it is essential that the applicant include their own detailed statement, and if possible, those of witnesses as well as a psychologist or counselor, all confirming that the marriage at issue was sincere and detailing the nature of the abuse inflicted. These affidavits become all the more important when other evidence of a shared household and residence is not available – as is quite common when we are dealing with a turbulent, abusive relationship.
Cancellation of Removal for Battered Spouses: If a U.S. citizen spouse withdraws their visa petition filing on behalf of their abused foreign spouse while the foreign national’s application for permanent residence remains pending, the application will likely end up being denied, and sometimes the foreign national will even find themselves defending removal proceedings before an immigration judge. At that juncture, the foreign national may very well have the option of applying for Cancellation of Removal as a Battered Spouse before the Immigration Court. The decision on such an application rests on the Immigration Judge, and if it is approved, this application will lead to the foreign national being issued permanent resident status.
The requirements associated with this type of application are similar or identical to those at play in the I-360 Battered Spouse Self Petition context, although applicants for Battered Spouse Cancellation of Removal must also document that they have been physically present 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.” Further, the fact that the marriage at issue was terminated by divorce is of no consequence to this process, and no matter how long ago in the past the divorce was finalized. Notably, applicants for battered spouse cancellation of removal are eligible to receive an Employment Authorization Document while awaiting a final court date on their application, a wait that can be as long as 3 or more years.
U Visa: Victims of domestic violence crimes may be qualified for U visa status, an immigration status which leads to the issuance of an Employment Authorization Document (with a four year validity). After 3 years in U visa status, a foreign national becomes eligible to apply to adjust their status to that of permanent residence (“green card”). To qualify, the applicant must be able to document: A) they suffered substantial physical or mental abuse as a victim of certain “qualifying criminal activity” – including a domestic violence related crime, B) they possess reliable information regarding the criminal act, C) they are ready, willing and able to assist law enforcement in the investigation or prosecution of the criminal act AND D) the crime was carried out in the U.S. or U.S. territory/possession or violated qualifying U.S. federal laws. Furthermore, per recent changes by the Biden Administration, pending U visa applicants may be eligible to be issued Employment Authorization Documents while awaiting a decision on their application.
Unquestionably, achieving success in any of the above filing contexts, involves a challenging process. To rise to the challenge and to approach the process with a clear headed, practical strategy, it is essential that prospective applicants be fully advised of their legal options and which of those options are best suited to their individual circumstances.
PUBLISHED October 31, 2021 – “IMMIGRATION LAW FORUM” Copyright © 2021, By Law Offices of Richard Hanus, Chicago, Illinois