What are my options if my spouse abused me?

Good day Mrs. Walker-Huntington:

If a person is currently married to a citizen of the US but the couple has separated because one partner is abusive, what is the best way of moving forward with the processing of papers? This had already started and they sent a letter requesting evidence that both persons live together. They don’t.

The other person does not want to cooperate to assist. There is proof of the abuse as the wife had attempted to get the husband deported. They went to court and proof of the abuse was shown to the judge, but he dismissed the wife's request. I am waiting on the 10-year papers.

How does one handle a situation like this? Thanks in advance for your help.

PGC

Dear PGC:

If a beneficiary has not yet received their residency, even if they have not been petitioned for and their US or Lawful Permanent Resident spouse is abusive – there is the Violence Against Women’s Act (VAWA) option that is available to both men and women to obtain US residency. It is also available if the abuser is your parent or your over 21-year-old son or daughter. It is available if the victim is in the United States, or outside the United States – under specific circumstances.  

Abuse varies by situation, but you must have been battered or experienced extreme cruelty. Sometimes this includes the US citizen or Green Card holder abuser refusing to file a petition on your behalf and or threatening to have you deported.

Unfortunately, there has been widespread fraud in the VAWA area of immigration law. Many people use social media to encourage immigrants to file VAWA when they are not entitled to the protection. It has been mindboggling how many VAWA petitions have been filed for people who are not even aware that a VAWA petition has been filed on their behalf. People become desperate to gain their US residency and often fall into a trap laid by unscrupulous people who make promises and enter them into the US immigration system for a benefit to which they are not entitled. Sadly, this group of people include lawyers – so do your homework before hiring someone to assist you with this process.

VAWA remains a viable option for anyone who has been abused and can make their case to US Citizenship & Immigration Services.

On the other hand, if you already have a conditional (two-year) Green Card and it is time to apply for your permanent (10-year) Green Card, and the marriage that gave rise to the eligibility is no longer viable, you must apply with a waiver of the joint filing requirement. It is best to be divorced, but if not practical from a timing perspective, you can still apply for the waiver and explain with the removal of condition petition. Certainly, if there is abuse in the relationship, this should be explained and documented as well as the validity of the marriage.

If you have already jointly filed to remove the condition on the two-year Green Card, the marriage has since broke down, and USCIS is asking for evidence of the continuing relationship – it is time to get a lawyer to withdraw and refile your petition.

For some couples the original Green Card filing goes smoothly, but the removal of condition on a two-year card presents far greater difficulties. This is not just because a marriage has broken down, but because USCIS expects more supporting documents to prove the continuation of the marriage after two years.

Dahlia A. Walker-Huntington, Esq. is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal & international law in Florida.  She is a mediator and former Special Magistrate & Hearing Officer in Broward County, Florida. info@walkerhuntington.com