When The Marriage Goes Sour: Options for Pending Adjustment of Status Applicants in the U.S.
Published: June 4, 2010

A foreign national is in the U.S. visiting, studying or working, (possibly even overstaying their visa) and he meets the person of his dreams, or so it seems. That person is a U.S. citizen and following marriage, the couple files “adjustment of status” paperwork to facilitate the foreign national’s resident status. Within 90 days of the filing, an employment authorization is issued and shortly thereafter the couple is scheduled to appear before an immigration officer at a local Department of Homeland Security/Citizenship and Immigration Services (CIS) office for an in depth interview. The interview covers various topics and issues of eligibility, including the history and sincerity of the relationship. But what happens when the marriage sours while the case is pending and the U.S. citizen threatens to withdraw their petition?

Firstly, and theoretically, the foreign national can make the argument that the marriage was bona fide at its inception, and absent the U.S. citizen’s actual withdrawal of their petition, a basis for CIS to approve the filing exists. This approach, although legally sound, in practice is usually received with little or no enthusiasm by the CIS officer in question, with the officer usually going out of their way to contact the petitioning U.S. citizen and provide them an opportunity to withdraw their petition.

For foreign nationals who fall victim to their U.S. spouse’s physical abuse or extreme mental cruelty, another option would be the filing of an I-360, Battered Spouse Self Petition. With the Battered Spouse Self Petition, it does not matter that the U.S. citizen withdrew their petition, or that the couple even divorced. Instead, so as to protect and emancipate a foreign national from their U.S. citizen’s abuse and control, the governing law allows a foreign national to seek U.S. residence, regardless of the wishes of their U.S. citizen spouse. (It should be noted that battered spouses of U.S. lawful permanent residents are also eligible to file this petition). Battered spouse self petitioners must be of “good moral character”, and document their petitions with one or more of the following types evidence: 1) detailed affidavits from the abused spouse and any 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 toward U.S. residence.

If the foreign national is placed in removal proceedings after the underlying marriage based adjustment of status application is denied, 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. It involves many of the same requirements as the I-360 Battered Spouse Self Petition, although applicants for Cancellation of Removal also must document 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 but making the most of the evidence available and formulating a thoughtful strategy is key to maximizing the chances of a case being approved.

Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois