The
Violence Against Women Act (VAWA), passed into law in 1994 and
amended in 2001, provides hope for immigrant abuse survivors.
Under U.S. immigration law, immigrants may obtain a green card
("U.S. permanent residence") by marrying a U.S. citizen
(USC).
The USC must, however under the normal course,
petition U.S. Citizenship & Immigration Services (CIS, formerly
known as "INS") for an immigrant visa and a green card
application for his/her immigrant spouse based on the marriage.
But this process is not always easy on the immigrant – in
many instances, it provides one of the most abusive ways a sponsoring
spouse can exercise control over the immigrant, by holding the
immigrant's tentative immigration status over her. This is where
VAWA helps. Abused immigrants who are married to a U.S.
citizen or Lawful Permanent Residents may now
petition on their own for an immigrant visa and green card application,
without the abuser's knowledge or consent. However, one of the
recurring problems and questions that come up in these abused
spouse cases is what happens to the immigrant's chances for a
green card if the abuser goes through on his threat and files
for divorce? Similarly, how is her green card chances affected
if the immigrant files for divorce, herself? Filing for relief
under VAWA may still be possible even if divorce proceedings have
begun or even if the divorce is final. A divorced spouse who was
subject to extreme cruelty from his or her legal permanent resident
or U.S. citizen spouse may apply for an immigrant visa as an abused
spouse (eventually leading to a green card) if the petition is
filed with CIS (INS) within 2 years following any final divorce
decree. Thus, if you are already divorced, you can still file
for VAWA protection, but only if your divorce is 2 years old or
less at the time you file and can prove that the abuse was related
to the reason for or was the reason for the divorce, itself.
The divorced battered spouse must still prove
the basis elements of a VAWA self-petition including having a
real marriage (i.e., not a marriage entered into for immigration
purposes) as well as prove that s/he lived with the abuser when
they were married at some point. This provision allowing for divorce
spouses to file applies to all cases that were still being decided
by CIS or filed on or after October 28, 2000. There are exceptions
to this date, however, so an immigrant in this situation should
contact an immigration attorney who regularly deals with VAWA
(Violence Against Women cases) to determine if she is eligible
to file for immigration protection under VAWA. If an abused immigrant
spouse chooses to not file a VAWA-based immigrant visa petition
and chooses to rely on her spouse to sponsor her, if the spouse
fails to sponsor her or the case the spouse filed is not approved
by the time the divorce is final, that case will be denied and
the immigrant will have to start over with either a VAWA-based
immigrant visa (if eligible) or some other potential immigrant
visa or will be stuck without the means to obtain a green card.
If an immigrant believes that her spouse is going to file for
divorce or has already filed for a divorce and has a case based
on her spouse's sponsorship currently being decided by INS (CIS),
there may be a way to save the green card (adjustment of status)
application that is attached to her spouse's immigrant visa filing
and file for VAWA immigrant visa to protect herself from her spouse's
threats, and retain her work card and travel authorization instead
of having to start all over again with a new green card application..
Copyright 2005, Heather L. Poole, Esq. Attorney Heather L. Poole
practices family-based U.S. immigration law in Pasadena, California.
She is a published immigration author and supervises abuse-based
immigration cases at the Los Angeles Commission on Assaults Against
Women. She is an active resource to the “Violence Against
Women experts” list of the National Lawyers Guild, the National
Network to End Violence Against Immigrant Women, and the National
Domestic Violence Hotline. She can be reached at 626.432.4550
or heather@humanrightsattorney.com. For more information on the
options available to abused immigrants, access www.humanrightsattorney.com.info@humanrightsattorney.com
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