Relief for Abused Spouses
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:
- 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
- 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:
- Be residing in the U.S. when the application is submitted to INS;
- Be eligible for the immigrant classification sought;
- Have previously resided in the U.S. with the citizen/resident;
- 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
- Be a person of good moral character;
- Be a person whose deportation would result in extreme hardship to him or
herself, or to his or
her child; and
- 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
"Extreme cruelty" may include being the victim of any act, or threatened act
, of violence. Acts of
violence may include any of the following:
- Any forceful detention that results, or threatens to result, in physical
or mental injury;
- Psychological or sexual abuse or exploitation, including rape,
molestation, incest (if the victim
is a minor) or forced prostitution;
- Acts that may not initially appear violent but are part of an overall
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.
The information provided herein is of general nature, and should not be
construed as legal advice.