Generally, where a person obtains a green card through marriage, the immigrant receives a two-year conditional green card and both the immigrant and her US citizen spouse are required to file a joint I-751 petition asking for a ten-year green card for the spouse and children within 90 days before the two-year anniversary of the first green card.
However, this does not work well if the relationship becomes abusive. The Immigration Act of 1990 provides that if the immigrant spouse has been battered or subjected to extreme cruelty by her (or his) spouse, she is entitled to submit a form I-751 battered spouse waiver without waiting two years. This allows the battered spouse or child to have the two-year limitation on their green cards removed without the assistance or knowledge of the abuser. Conditions to apply for a battered spouse waiver include:
- The marriage was in good faith;
- The spouse or child was battered or subjected to extreme cruelty by the citizen or lawful permanent resident abuser during the marriage;
- The victim has conditional legal permanent residence as a spouse of a citizen or legal permanent resident because the marriage was less than two years old when the victim obtained residence;
- The victim child has conditional legal permanent residence because their immigrant parent’s citizen spouse filed a petition for the child when the marriage was less than two years old.
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What is “battery”?
Battery occurs when you are the victim of physical violence by your spouse. Be prepared to submit police reports and/or medical reports with your from I-751 petition.
What is “extreme cruelty”?
Extreme cruelty can take many forms. It can take the form of threats. These threats can be to get you deported, to divorce you or to do harm to you or your loved ones. It can also take the form of unreasonable conduct. Be prepared to prove this extreme cruelty to the USCIS.
Once the battered spouse waiver has been submitted to the U.S. Citizenship and Immigration Services (USCIS), the government may ask for additional evidence of the abuse in the form of police reports, restraining orders, hospital visits, and the like. If the battered spouse waiver is approved, the conditional status will be removed and the victim will receive a ten-year green card. If, however, you are a conditional permanent resident through marriage to an abusive U.S. citizen or lawful permanent resident and fail to file a joint petition or a battered spouse waiver, then your permanent residence status could be lost and you could be placed in deportation proceedings.
VAWA Battered Spouse Links
- Battered Spouse, Children & Parents (USCIS)
- VAWA Laws for Abuse Victims
- Filing Out Form I-751 with a Waiver Based on Abuse or Battering
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening an 8 attorney firm specializing in immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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