Immigration Options for Victims of Domestic Abuse
Under normal circumstances, a family-based application for permanent residence requires the support of a U.S. citizen or legal permanent resident (LPR) spouse, parent or child. But what about the spouse or sponsor who is abusive, cruel and threatening? What can be done when a spouse uses immigration threats like “I’ll turn you over to immigration” or “I’ll report you and you’ll be deported” or “If you don’t obey me, I’ll take away the immigration papers.” What can be done when a family-based beneficiary feels trapped in an abusive relationship due to their immigration status?
Fortunately, U.S. immigration law recognizes the risks and problems caused by fear of immigration problems and offers some solutions for individuals confronted by actual and threatened domestic violence. Under provisions of the Violence Against Women Act (VAWA), victims of domestic/spousal abuse have several options.
PLEASE NOTE: Both men and women can also qualify for relief under VAWA. All victims of domestic abuse and violence arising from intimate relationships, including same-sex relationships, are entitled to the protection of these laws. A legal same-sex marriage or common-law marriage is considered a valid marriage under VAWA.
There are three special forms of relief for immigrant victims of domestic violence under VAWA:
Self-petitioning for lawful permanent residence under VAWA
Ordinarily, the immigrating spouse of a U.S. citizen (USC) or LPR must be sponsored for lawful permanent residence. Most family-based immigration is family-sponsored immigration. However, for victims of domestic abuse and their children, the law provides a form of relief which permits them to “self-petition”, or file an application for permanent residence on their own.
An immigrant may be eligible to “self-petition” for lawful permanent residence without the involvement of the abuser if he/she is abused by:
- a USC or LPR spouse (or if that spouse has abused your child);
- USC or LPR parent (including a step-parent); or
- an adult USC son or daughter.
For additional requirements pertaining to the VAWA self-petition, please click here.
Waiver of Joint Filing Requirement for battered spouses or children
Ordinarily, an immigrant who acquires a green card through marriage, and their accompanying children, must file a Petition to Remove Condition during the 90 day period prior to the second anniversary of the green card. This is referred to as “removal of condition” and it is required whenever an immigrant gets a green card based on a marriage that is less than two years old.
In most cases, the Petition to Remove Condition must be jointly filed. That is, it must be filed by the immigrant and by his/her USC or LPR spouse. However, the law recognizes that, in some cases, marriages end before the end of the two-year period. In this situation, it may still be possible to establish the validity of the marriage and retain the green card, if the immigrant qualifies under one of three waiver provisions. For immigrants who are living in abusive situations and who cannot file a “joint” petition with the abusive spouse or parent, the law provides a form or relief known as the “battered spouse or child waiver.” To qualify for a waiver as a “battered spouse or child”, the immigrant must show:
- that he/she acquired conditional legal permanent resident status as the spouse (and in some circumstances as the child) of a USC or LPR;
- that the marriage that is the basis for your conditional legal permanent residence was entered in good faith;
- that during the marriage, the immigrant spouse or your child was abused or subjected to “extreme cruelty” by the USC/LPR spouse. “Extreme cruelty” is any form of power and control and includes, but is not limited to: being the victim of or threatened with an act of violence, forcible detention resulting in physical or mental harm, psychological or sexual abuse, rape, molestation, incest, and forced prostitution.
By using the “battered spouse or child waiver”, a person who is the subject of domestic abuse can make decisions about the marriage and the relationship without fear of losing immigration status. If the waiver petition is approved by the USCIS, “conditional” status is removed and the immigrant’s status as a lawful permanent resident is retained.
Cancellation of Removal under VAWA
Cancellation of removal is a form of relief available in Immigration Court. If an immigrant has been charged with an immigration violation and is in Immigration Court faced with removal (deportation), he/she can apply to the Court for relief from removal. In general, to qualify for cancellation of removal, the immigrant must have lived in the U.S. for ten years, must be a person of good moral character and must be able to demonstrate exceptional and extremely unusual hardship to a qualifying relative, other than the immigrant.
For the victims of domestic violence and their children, the legal standard for cancellation of removal is lowered. In particular, to be granted cancellation of removal by an Immigration Judge, a battered spouse or child must show that he/she has been in the U.S. for three years, that the he/she is a person of good moral character and that the removal/deportation would result in extreme hardship (not exceptional and extremely unusual hardship) to the alien or to his/her child or parent (who need not be a USC or LPR).
This legal standard allows the Immigration Court to confer cancellation of removal on immigrants who are victims of domestic violence based on a more generous definition.
If you or someone you know is in an abusive relationship and if they are worried about how the end of the relationship might affect their immigration status, it is important to immediately consult a qualified immigration lawyer. No one should stay in an abusive situation over fear of losing immigration status or fear of being turned over to immigration authorities. If you or your child are facing domestic abuse, intimidation or cruelty, seek help immediately. Go to the police in your community; they will not report you to immigration. Find a shelter or your local agency for the protection and prevention of domestic abuse. And, to review issues, options, alternatives and solutions to the immigration issues arising from a troubled marriage, contact us.