New York Lawyer's Legal Updates

Choices For Abused Spouses

Author: Green Card Attorney Alena Shautsova

When somebody enters into a marriage, they usually hope that the union would last forever and spouses would respect each another, and they would live happily –ever- after... Some marriages last for a long time, some forever, and some for days or hours. United States Immigration laws require that a non-citizen who is looking to "fix" his/her Immigration status would show not only the fact of the marriage, but also would present proof that the marriage is bona fide, or not the one for Immigration purposes.

Sometimes, a US citizen is willing to help his/her non-citizen spouse to stay in the US: it is a natural desire of a spouse to have a family, live together and hence, the citizen is sponsoring the non-citizen... Sometimes, the marriage turns out to be a far cry from a happy-ever-after equivalent, and the non-citizen has to face a harsh reality: he/she has to fight U.S. Immigration system on their own.

What options, if any, are out there for the non-citizen spouses or partners of the U.S. citizens?

There are several options but only for those who got legally married. If the couple never got legally married, the only option that would be out there for the non-citizen, is a U visa, if he/she became a victim of domestic violence. There may be an option of a cancellation of removal, but the non-citizen would need to have U.S. citizen or lawful permanent resident qualifying relatives.

1. Option No.1 VAWA self -petition: a US citizen is refusing to go for an interview, or file the initial documents at all, and the non-citizen spouse can demonstrate that he/she is a battered spouse.

2. Option No. 2: an I-751 waiver based on cruel treatment by the US citizen spouse. This option may be available to those whose U.S. citizen spouse did submit an I 130 petition, but later decided not to cooperate and abused the non-citizen.

3. Option No. 3: VAWA cancellation of removal. To qualify for this discretionary relief, an applicant is required to demonstrate: (i) battery or extreme cruelty by a spouse who is a United States citizen; (ii) a continuous period of physical presence; (iii) good moral character; (iv) not having an aggravated felony conviction and not being inadmissible or deportable for certain specified reasons prescribed by statute (though, an agency waiver may apply); and (v) extreme hardship following removal. Id. § 1229b(b)(2)(A).

Option No. 3 is very similar to VAWA self-petition but can be used by those who are in removal proceedings, who would not qualify for an adjustment of status in certain situations, and arguably, option No.3 does not require showing of good faith marriage (required for I 360 petition).

U.S. Immigration laws are extremely complicated and are constantly changing. It is best that a non-citizen would consult with an Immigration attorney to avoid mistakes that would be impossible to correct.

24 May 2016
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