by: Carl Shusterman, Attorney-At-Law

At long last, the U.S. Immigration and Naturalization Service (INS) has issued regulations permitting certain abused spouses and children of U.S. citizens and permanent residents to "self-petition" for green cards under the Violence Against Women Act (VAWA). The Act was enacted as part of the Violent Crime Control and Law Enforcement Act of 1994. Spouses and children who have been battered or subjected to extreme cruelty by a citizen or resident of the U.S . no longer have to depend on that person to obtain green cards.

The Violence Against Women Act

Although the Act uses the word "women" in its title, it applies equally to men and women.

VAWA allows a spouse or child to self-petition either as an (1) immediate relative or under the (2) family-based 2A category if they are persons of good moral character and if the following two requirements are met:

1. The marriage was entered into in good faith, and the alien or a child of the alien has been battered or subjected to extreme cruelty during the marriage; and

2. Deportation would result in "extreme hardship" to the spouse or the child.

The INS Regulations

The INS issued interim final regulations on March 26, 1996 which provide that the self-petitioning spouse or child must:
1. Be residing in the U.S. when the application is submitted to INS;

2. Be eligible for the immigrant classification sought;

3. Have previously resided in the U.S. with the citizen/resident;

4. Have been battered/subjected to extreme cruelty by the citizen/resident during the marriage or be the parent of a child who has been battered/subjected to extreme cruelty by the citizen/resident;

5. Be a person of good moral character;

6. Be a person whose deportation would result in extreme hardship to him or herself, or to his or her child; and

7. Have entered into the marriage in good faith.

In addition, the self-petitioning spouse must be married to the abuser when the petition is filed. However, the termination of the marriage through annulment, divorce or death after the petition is filed will not prevent the petition from being approved.

If the self-petitioning spouse remarries before becoming a lawful permanent resident, he or she loses eligibility to immigrate based on the self-petition. In such cases, the new spouse, if he or she is a U.S. citizen/resident may petition the abused spouse.

Procedure and Evidence

An abused spouse or child of a lawful permanent resident may submit a visa petition (form I-360) at the INS Service Center having jurisdiction over the matter. An abused spouse of child of a U.S. citizen may submit an application for adjustment of status (form I-485) currently with a visa petition at the office having jurisdiction over the spouse's/child's place of residence. Self-petitions may not be submitted abroad.

"Extreme cruelty" may include being the victim of any act, or threatened act , of violence. Acts of violence may include any of the following:

1. Any forceful detention that results, or threatens to result, in physical or mental injury;

2. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor) or forced prostitution;

3. Acts that may not initially appear violent but are part of an overall pattern of its from police, judges, court officials, medical personnel, school officials, clergy, social workers, social service agency personnel, and "other forms of relevant credible evidence". Evidence may also come from other persons close to the situation or from the abused spouse or child.

   The INS regulations also contain suggestions regarding factors to be considered in establishing extreme hardship and good moral character.

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Note:

The information provided herein is of general nature, and should not be construed as legal advice.