By Atty. Devin M. Connolly
Perhaps the most common way for a person to be granted permanent resident status (Green card) is through marriage to a U.S. citizen. But what happens when the U.S. citizen spouse is physically or verbally abusing the foreign national? Are they required to stay in the abusive relationship until they receive their green card? Because of the “Violence Against Women Act,” (“VAWA”), the answer is NO!
The VAWA applies to both men and women and it is not limited to only spouses of U.S. citizens. It allows certain spouses, children, and parents of U.S. citizens and permanent residents to file a petition for themselves without any assistance from their relative. This ability to file without their family member’s assistance allows victims to immediately seek both safety and independence from their abuser. The abuser will not be notified about the self-petition.
There are three general categories of people eligible to file self-petitions under VAWA. These categories include people who are abused after entering into a marriage with a U.S. citizen or permanent resident; parents of abusive U.S. citizen children; and children who are under 21, unmarried, and have been abused by their U.S. citizen or permanent resident parent. This requirement that a child file before their 21st birthday may be extended until they turn 25-years-old if they can demonstrate that the abuse was the main reason for the delay in filing.
The most difficult task facing a self-petitioner under VAWA is typically establishing that they have suffered “extreme cruelty” by their family member. While difficult, this task is still very possible. First, it is important to know that “extreme cruelty” is not limited to acts of physical violence. “Extreme cruelty” is interpreted much more broadly. It does obviously include acts of physical violence, but it also includes many other types of abuse as well. In fact, the U.S. Citizenship and Immigration Service (“USCIS”) may approve a self-petition based solely on psychological and emotional abuse. The USCIS will also consider what has been deemed “immigrant-related” abuse. Immigration-related abuse may include the refusal to file papers on behalf of a family member despite repeated promises to do so, calling the U.S. Immigration and Customs Enforcement to report a family member’s unlawful presence in the U.S., or threats to have a family member deported if they do not act in conformity with the abuser’s wishes.
The USCIS will consider the totality of the circumstances when assessing whether “extreme cruelty” is present, which means that they may find the existence of “extreme cruelty” when there are acts that may not initially appear violent but are part of an overall pattern of violence.
It is especially important to note that in cases where a person is filing a self-petition based on the abuse they suffered from their spouse, the immigrant does not have to stay married to their abusive spouse. They are certainly permitted to file a self-petition during the marriage, but they may also file the self-petition after the marriage has been terminated through death or divorce. However, if the marriage has already been terminated, they must file the self-petition within two years of the termination of the marriage. They must also file the VAWA petition before the self-petitioner enters into a new marriage.
In addition, if the abusive spouse/parent had previously-filed an immigrant visa petition on behalf of the battered spouse/child, the priority date can be transferred to the self-petition. This can be helpful for spouses or children of lawful permanent residents who face a long wait for the availability of their priority date.
Following the approval of a self-petition by the USCIS, the immigrant will be permitted to seek adjustment of status as soon as their priority date is current. However, even if the self-petitioner is not ready to adjust their status, they may receive “Deferred Action.” This grant of “Deferred Action” would protect them from being placed in removal proceedings even though they lack lawful immigration status in the U.S. These individuals who receive “Deferred Action” are also eligible to receive employment authorization.
Obtaining permanent resident status as an abused spouse, parent or child is a complex process and requires excellent advocacy before the USCIS. Individuals seeking assistance in such matters should therefore always consult a knowledgeable and experienced immigration attorney.