Boston Immigration & Nationality Law

Help for victims of abuse

The Violence Against Women Act, or VAWA is a fairly complex area of immigration law, but simply put, relief may be available if a person (man or woman) can show the following:

1. He or she is married to – or is an unmarried child under 21 of – a person who has married a United States Citizen or Permanent Resident*, or, in some cases, is the parent of a United States Citizen;
2. He or she has a valid marriage and resided with the spouse (evidence might include shared bills, shared finances, children born to the couple, and statements of people who can attest to the validity of the marriage), or had a recognized parent-child relationship;
3. He or she was subjected to abuse (physical abuse or extreme cruelty) at the hands of that relative; and
4. He or she can demonstrate good moral character.

If these conditions are met, the victim of the abuse can file a petition for permanent residence under VAWA. In a spousal context, a filing is even possible where the couple was divorced, as long as the case is filed prior to the second anniversary of the divorce. Also, if the victim is in immigration proceedings, there are defenses against removal as long as certain conditions are met.

As I mentioned, this is a very technical law, so if you believe that you or someone you know qualifies, it’s wise to consult with an immigration lawyer. For example, if the marriage was a bigamous marriage, it’s STILL possible to seek relief under VAWA! There are other avenues for people who might not qualify under the above-mentioned criteria, but who are victims of abuse, so be sure to talk with someone about this – if for no other reason than to seek help.

Another consideration is this: if a person who has the possibility of a VAWA process is already working with an immigration lawyer for a family petition, that person should seek out another lawyer for a consultation. This is because, in joint petitions, the lawyer is representing both husband and wife, and cannot advise one to do something that would affect the other negatively – that is, the lawyer could not help in a conflict of interest situation.

Unfortunately, some people use the immigration process to subjugate others. I've seen cases in Boston where a citizen or permanent resident marries a foreign person, and then doesn’t file for the that person, so as to foster dependence – and abuses the spouse, and holds the threat of not filing over the spouse’s head “don’t tell anyone, or I won’t file for you” or, “if you tell anyone, I’ll report you to immigration” or “if you tell anyone, I’ll withdraw my petition for you (and/or your children).” With VAWA, the victim of abuse finally has a shield. Again, if you or anyone you know is in this situation,  first, ensure safety, then seek a consultation with an immigration attorney.

*(or of a person eligible for relief under the Cuban Refugee Adjustment Act of 1966; the Haitian Refugee Immigration Fairness Act of 1988 (HRIFA); or the Nicaraguan Adjustment and Central American Relief Act (NACARA))

Conditional Residence through marriage to a U.S. Citizen, Part 2

What about situations where the couple cannot file a joint petition for one reason or another?

As mentioned earlier, some of these situations would be:

1. separation;
2. divorce or annulment;
3. death of petitioner;
4. extreme hardship; and
5. spousal/parental abuse.

Separation is the most problematic. If the couple is separated, and there is no final divorce decree, the non-citizen spouse and children cannot file the I-751. The only exceptions would be cases where the U.S. Citizen has abused the conditional residents, or cases where the conditional resident could show extreme hardship.

Otherwise, in cases of divorce, annulment, or death of the petitioning spouse, the conditional resident could immediately file the I-751. In such a case, it would be essential to include as much evidence of the validity of the marriage as possible.

These cases can be tricky, so again, seek the counsel of an immigration attorney if you find yourself in this situation.

Visa Bulletin 3/07

From the Department of State. 

Conditional Residence through marriage to a U.S. Citizen, Part 1

As mentioned in a previous post, if the foreign national who got a green card through marriage to a U.S. Citizen was married under two years (or if a child got Permanent Residence through his or her U.S. Citizen Stepparent prior to the second wedding anniversary) when the Permanent Residence was granted, the green card is valid for only two years, and a joint petition must be filed by husband and wife (and any Permanent Resident children) to remove the condition on residence in the ninety days prior to expiration.

To apply, one sends USCIS form  I-751 with filing fees and a copy of the green card to the appropriate USCIS Service Center.  It's important to submit as much evidence of a good-faith marriage as possible; this will make it easier for the USCIS officer to make a quick decision, and send out an approval (some cases can drag on for years; I'm aware of one in Boston that took eight! You should jump at any opportunity to speed up the process...)

In some cases, either due to insufficient or unconvincing evidence, or perhaps as a quality control measure, the couple will be called in for an interview at the local District Office. Again, this can take  a long time.

The categories of evidence to submit includes: documents showing that the couple lives together, holds themselves out as a married couple, shares finances, and, if they have children, birth certificates. Some examples, in a VERY partial list:

• Bills;
• Leases/deeds/mortgages;
• Affidavits from friends and family attesting to the validity of the marriage;
• Joint bank accounts;
• Birth certificates of children;
• Hospital records;
• Life insurance policies;
• Health insurance policies;
• Automobile insurance;
• Joint tax returns;
• Evidence of joint ownership of assets/property

In short, gather every bit of paper that has the names of both husband and wife on it.

As an aside, my wife is a conditional resident, and sometime in August we'll be jointly filing an I-751. We keep a file folder into which we put the kinds of documentation that we know we'll need to submit, so when it comes time to file, it should be  fairly easy to put the application together. As we've taken a few trips together, we'll include airplane tickets and itineraries to the application packet, to show that not only do we live together, but that our vacations are with each other, and not from each other! With any luck, and a well-prepared packet, Ana will get her approval and we won't have to go to the Boston District Office for an interview.

To continue, when USCIS receives the completed application, it sends a receipt notice extending Permanent Residence for a year, for work and travel purposes; then, it's a matter of waiting for a fingerprint appointment and then decision, a request for more information, or an interview notice.

As always, if the permanent resident has had any interaction with the criminal system, it's important to seek the advice of an immigration attorney. Of course, it's always wise to do so when working through the maze of immigration regulations, as every case has its own complexities.

In my next post, I'll talk about situations where the joint petition can't be filed, due to separation, divorce, annulment, death, extreme hardship, or spousal/parental abuse.

Obtaining a green card through marriage to a U.S. Citizen

When permanent residence, or the "green card" is acquired in the United States, the process is called Adjustment of Status. When it is acquired outside of the United States, in a consulate or embassy, the process is called "Consular Processing." I'll be talking about Adjustment of Status today.

As with most immigration processes, there is a good deal of paperwork involved. It's important to get it right; if forms are filled out incorrectly, or necessary documentation is not included, USCIS can reject the packet, or worse. An example of worse: I once had to help new clients find out what was going on with their case, which had major delays; it turned out that they had incorrectly entered the Alien number on the forms, and this derailed the process. Luckily, we were able to correct that and the non-citizen spouse got her green card.

To be eligible to adjust status, generally speaking, one must have been inspected and admitted to the U.S. -- that is, must have entered with a visa. There are some exceptions, both ways: for example, someone with a crewman's visa is not eligible to adjust, and someone who entered without inspection but who has 245(i) protection can. As always, you should speak to an immigration attorney about the specifics of your case!

Other eligibility issues are any criminal arrest or involvement of the noncitizen beneficiary, and now, with the passage of the Adam Walsh Child Protection and Safety Act of 2006, certain offenses of the petitioner, which can render the U.S. Citizen ineligible to petition.

Finally, if the noncitizen beneficiary has engaged in immigration fraud, or has any other ineligibility issues, he or she should consult with an attorney, as there are waivers available in certain cases.

Forms used in a spousal petition are:

• I-130, Petition for Alien Relative;
• I-485, Application to Register Permanent Residence or to Adjust Status;
• I-864 , Affidavit of Support (and another, if a co-sponsor is needed)
• I-765, Application for Employment Authorization (or "EAD");
• I-693, Medical Examination; and
• G-325, Biographical Information for both husband and wife.

If the noncitizen is eligible, he or she may also apply for a travel document on form I-131.

Documentation needed:

• Proof of citizenship of U.S. Citizen spouse;
• Proof of eligibility of alien spouse (passport, proof of inspection and admission);
• Proof of marriage (and proof of eligibility to marry, if either spouse has been married in the past);
• Passport-style photographs of petitioner (2) and beneficiary (4)*; and
• Proof that the U.S. Citizen spouse can support the beneficiary financially.

In most cases, applications are sent with fees (the sooner the better!) to the Chicago lock box, which forwards the packet to the National Benefits Center in Missouri.

USCIS sends receipts, then schedules fingerprints. Shortly thereafter, EADs are sent out, then, depending on the backlog at your local USCIS office, the next step is to wait for the interview (in Boston, this can be as short as three months) where the couple will have to prove that the marriage is a good faith one.

Finally, if the couple has been married less than two years by the date of approval of the petition for permanent residence, the green card will be a conditional one, granted for two years. That is, the new green card holder will have to file jointly with the U.S. Citizen spouse to have the condition removed within the 90 days prior to expiration, and will have to prove again that the marriage was a good faith one.

* 5, if applying for a travel document