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An abused immigrant who is married to a U.S. citizen or Lawful Permanent Resident or who divorced her abuser in the past two years may now petition on her own for an immigrant visa and green card application, without the abuser’s knowledge or consent.

In this confidential process, CIS (formerly called “INS”) agents cannot legally contact the abuser and tell the abusive spouse anything of the abused immigrant’s attempts to obtain a green card under VAWA.

The process can often be completed within a year for those married to U.S. citizens. This process also provides renewed work authorization to lawful permanent residents who usually face a longer waiting period due to visa number backlogs.

Further, there is no appearance in front of a judge required (the process is paper driven) by the immigrant spouse and s/he may leave her abuser at any time, without harm to her immigration status. So, given these benefits, why do so many immigrants in such abusive marriages not file for their permanent residency under VAWA?

There are two main reasons. For one, many do not know of VAWA’s protections for abused immigrants and secondly, most do not recognize that what they have experienced or are still facing can be considered abuse or “extreme cruelty” under U.S. immigration law.

A finding of “extreme cruelty” (abuse under immigration law) is based on the emotional, psychological, financial, and/or physical abuse that an immigrant experiences during his or her marriage. The immigrant must not only prove to CIS that such abuse happened as best s/he is able but must also indicate how this abuse has affected the immigrant.

What one immigrant may consider abusive (i.e., derogatory put-downs) may not be considered abusive to another immigrant or person, depending on their culture, upbringing, background, or life experiences.

The immigrant must explain to CIS why their spouse’s actions affect her so significantly and subjectively, and thus, why CIS should consider those actions, taken in their totality (i.e, a pattern can be shown instead of one or two extremely abusive actions) should be considered “extreme cruelty.” For example, in many cases, a pattern of purely psychological abuse may be more terrifying and damaging to an immigrant’s emotional and physical well-being than physical abuse.

It is important to point out that an immigrant does not have to indicate that she experienced physical abuse to receive an approved VAWA case.

The following lists some common examples of behavior that may be considered “abuse” under U.S. immigration law:

Any type of Physical abuse, which also includes:
·Forcing you to have sex with him against your will, for fear that he will have you deported or will physically harm you;
·Forcing you to engage in his sexually perverse behavior even though you do not want to;
·infecting you with HIV or other disease due to his reckless or intentional acts;
·Groping, grabbing or touching you in your private areas in private or in front of others, humiliating you and making you feel uncomfortable;
·Forcing you to engage in unsafe sex with him or others;

PSYCHOLOGICAL & EMOTIONAL ABUSE MAY INCLUDE:

·Repeatedly making fun of you and humiliates you;
·Intimidating you (or threaten to harm your family or friends);
·Following you to or constantly calls you at your place of work trying to find out what you are doing;
·Making degrading remarks about your home country or your gender or sexuality;
·Threatening to have you and/or your children deported or call INS if you don’t do what he says or if you tell anyone about the abuse;
·Threatening to withdraw his green card sponsorship;
·Refusing to let you visit with your friends or family members or speak to them on the phone;
·Keeping tabs on you all day and becomes angry/obsessive about your whereabouts and who your friends are;
·Locks you in your own house or apartment;
·Refusing to let you use the phone to contact anyone or the police;
·Attempting to sabotage your friendships and work relationships;
·Attempting to destroy your reputation or causes you to lose your job;
·Giving you false hope that he will never hit you or abuse you again;
·Holding your passport hostage if you don’t do what he wants;
·Refusing to let you see your immigration papers and maintains absolute control;
·Treating you as his servant;
·Harming your pets or threatens to kill them;
·Ignoring you when you speak to him and refuses to speak to you, unless you do what he wants;
·Destroying your property;
·Threatening to commit suicide;
·Ignoring you for hours or days, refusing to speak to you or acknowledge that you are speaking;
·Blaming you for the abuse and his poor choices;
·Threatening to take away your children or tries to use your children against you;

FINANCIAL ABUSE MAY INCLUDE:

·Forcing you to pay all the joint expenses and even his private expenses;
·Forcing you to work double shifts, long hours, or perform demeaning work;
·Forcing you to beg him for money, even for the emergencies and basic essentials;
·Sorting through your things and invading your privacy, looking for items you have purchased and humiliatingly make you account to him for even your own spent money;
·Refusing to buy you food or clothing;
·Stealing from you;
·Forbiding you access to your joint accounts;
·Punishing you for purchases s/he made accusing you of lying or stealing from him/her;

Many times, an immigrant who seeks legal assistance because of abuse does not mention psychological or financial abuse because she fears that she will not know how to prove it. Physical abuse usually can be documented with photos, police reports, court transcripts, and restraining orders, but admittedly, psychological abuse is more difficult to demonstrate.

It still can be proven, though, through evidence including detailed affidavits of witnesses, hospital records and counseling reports.

Financial abuse may also be proven through receipts, checking account statements, affidavits of witnesses, and other types of documentation.

It’s imperative for any immigrant in an abusive marriage to seek assistance from an attorney, to brain-storm with the attorney about what kinds of evidence and witnesses will be available, and more than anything, to know her options.]]>

This “conditional green card” will terminate in two years if the couple cannot prove that they are still living together as husband and wife. This requirement was created in 1986 when Congress believed that the only way to counteract fake or sham marriages was to require ongoing proof that the couple still lived together and the marriage was not a mere economic or business transaction.

To convert the conditional (2 year) green card into a permanent green card, the U.S. citizen or legal permanent resident sponsoring spouse and the conditional green card-holding spouse must together to petition to have the condition removed, or else the green card will expire and lawful permanent residency status will be terminated.
This petition must be filed within the 3 month period before the green card expires.

In reality, though, the two year expiration can potentially cause quite a few problems for marriages that were real when the couple wed but are now leading to divorce due to domestic violence, adultery, or other “irreconcilable differences” near the time the immigrant’s green card is expiring. By requiring the cooperation of the petitioning US citizen, in most circumstances, to sign and file to have the condition taken off, the process creates a power-struggle between a feuding couple and worse, gives more power over the immigrant to an abusive U.S. citizen spouse.

There are limited exceptions available to an immigrant when his or her U.S. citizen spouse will not cooperate or help the immigrant file to have the condition taken off of the green card. If a couple separates or divorces at any time after the green card is first issued, it is unlikely that the originally sponsoring U.S. citizen or LPR spouse will cooperate in helping the immigrant spouse release the condition on the green card for a number of reasons. If this happens, the immigrant may be able to apply to have the condition removed from his or her own green card by applying for a waiver. The waiver allows the immigrant to apply to remove the condition on his or her green card without the assistance of their spouse. There are currently three different ways or grounds to apply for a waiver:

(1) good faith or bona fide marriage ground (if your divorce is final at the time of filing);
(2) extreme hardship (to the immigrant if deported to their original country); or
(3) extreme cruelty (proving that the immigrant suffered physical, emotional, or financial abuse from their spouse)

CIS allows an immigrant to apply for any number of these grounds on the same petition. Waivers are generally more difficult to have approved. If an immigrant files a waiver, the current policy is that an interview will be required. If you file a joint petition and depending on the evidence submitted, an interview may not be required.

If an immigrant fails to file for either a waiver or to file a joint petition with the spouse within the 90 day period, the green card will be terminated.

Once a CIS receipt notice is received from CIS, the immigrant will have proof that his or her green card is still valid for another year or until the case is decided, whichever comes first. If the case is still not decided within a year, the green card will be extended for another year and will be extended on an annual basis until the case is decided.

A remaining concern for many immigrants is what happens to their eligibility to apply for U.S. citizenship, especially if the immigrant does not stay with their spouse and instead files a waiver petition on their own. If the immigrant receives their green card through marriage and is still living with their husband or wife 3 years after the green card is initially issued, the immigrant will be eligible to apply for U.S. citizenship, even if the joint petition to remove the condition on the two year green card has not yet been decided. Actually filing for U.S. citizenship will speed up the process of CIS deciding the conditional residency issue, as conditional residency will no longer be an issue if a person has already received U.S. citizenship.

If an immigrant is applying for a waiver because he or she is divorced or for any other reason is not not living with the spouse anymore, then the immigrant will be eligible for citizenship after 5 years in lawful permanent residency status. The one exception to this is if a waiver is approved based on the “extreme cruelty” ground, which requires the immigrant to show that s/he suffered physical, financial, and/or psychological abuse from their spouse. If approved on this ground, the immigrant will be eligible to apply for U.S. citizenship in 3 years, even if not living with the abusive U.S. citizen spouse.

Before deciding whether to stay in a bad marriage, an immigrant must address their available options under both the waiver provisions and the joint petition provisions of the Immigration and Nationality Act. An immigration lawyer may be in the best position to help an immigrant flush out the potential advantages and disadvantages of choosing a particular route and many consultations with immigration attorneys throughout the U.S. are given free of charge.

The most important concern remains for immigrants to ensure that a close eye be kept on the expiration date of their conditional green card and not let it expire before seeking legal assistance. To learn more about conditional green cards, visit the U.S. Citizenship & Immigration Services’ website at www.uscis.gov, for a general overview.]]>