Spousal Visas, Conditional Residence, and Battered Spouse Petition

Definition of a Spouse

To be able to successfully petition for an immigrant visa for your spouse, (a 'spouse' is defined as a lawful husband or wife), your relationship with your spouse must be established by submitting certain documentation, and your spouse must be admissible to the United States under immigration law.

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Overview of Immigration Process

Family based immigrant visas are divided into preference categories on the Visa Bulletin. These preference categories depend on the relationship between the intending immigrant and the qualifying relative. A spousal relationship to a US Citizen or LPR is one of the various categories under which an individual qualifies for U.S. residency. In addition, there is also a separate preference category for immediate relatives (spouses, mothers, fathers, etc) of U.S. Citizens. There is a three-step process for your foreign national spouse to become a legal immigrant.

  • USCIS must first approve the immigrant visa petition (USCIS Form I-130) for your spouse;
  • Once approved, the I-130 visa petition will be forwarded to the Department of State's National Visa Center (NVC) by USCIS. It normally takes approximately 3-4 months for an I-130 Petition to be approved by USCIS. The Visa Bulletin, which is published on a monthly basis by the Department of State, governs the availability of visas and issuance of visas to family members of US Citizens or legal permanent residents residing abroad at the time the I-130 Petition is approved. Once the I-130 Petition for Alien Relative is approved, the intending immigrant will need to wait until an immigrant visa becomes available to them. The intending immigrant can check when an immigrant visa becomes available to them by looking at the dates for their preference category on the Visa Bulletin. Once the intending immigrant's I-130 priority date becomes current on the Visa Bulletin, the spouse immigrant visa has become available and the alien can proceed with their application for permanent residence. The NVC will notify your spouse (the beneficiary of the application) once the visa petition is received and again when an immigrant visa number is available. However, an immigrant visa number will be immediately available for immediate relatives of U.S. citizens;

If your spouse is:

  • Outside the U.S. when their visa petition is approved and when an immigrant visa number (if required) becomes available, your spouse will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa;
  • Legally inside the U.S. when their visa petition is approved and when an immigrant visa number (if required) becomes available, your spouse may use the Form I-485, Application to Register Permanent Residence or Adjust Status, to Adjust Status to that of a lawful permanent resident within the United States;

In order to expedite the immigrant visa process after filing the visa petition (I-130), the U.S.-citizen spouse can also file a K-3 petition. Similar to the immigrant visa process, National Visa Center (NVC) notifies the consulate of the approval of the K-3 petition. Often the spouse is able to come to the U.S. on the K-3 in only half the time it would take to wait for the whole immigrant visa process to be completed.

If you married your spouse before you became a permanent resident, your spouse may be eligible to receive following-to-join benefits. This means that you would not have to submit a separate Form I-130, Petition for Alien Relative, for your spouse, and your spouse would not have to wait any extra time for an immigrant visa to become available.

CONDITIONAL RESIDENCE:

If your marriage is less than two years old on the day your non-citizen spouse becomes a permanent resident, the green card or the permanent resident status is conditional and will expire after a two-year period. This is because you must prove that you did not get married to evade the immigration laws of the United States. If you receive conditional permanent residence you must apply to remove the conditions within the 90 day window immediately before your conditional green card expires. If you do not file the removal of conditions during this period of time, you risk being removed from the United States. The removal of conditions is in other words a fraud prevention mechanism for newly married couples.

How does one remove the conditions?
  • Both spouses must submit a joint petition within the 90-day period before the 2-year anniversary of the award date of your spouse's conditional legal permanent resident status. The expiration date on your alien registration card (commonly know as green card) is also the date of your second anniversary as a conditional resident.
  • If the marriage has terminated by reason of divorce, death of the citizen spouse, or spousal abuse, the non-citizen spouse may apply for a waiver of the joint petition requirement. In such cases, you may apply to remove the conditions on your permanent residence any time after you become a conditional resident, but before you are removed from the country.
Removal of Conditions is Suitable For:

Conditional permanent residents who obtained such status through marriage may remove the conditions on their residence, including:

  • Permanent residents who remain married to the same U.S. citizen or lawful permanent resident;
  • Widows or widowers of a marriage that was entered in good faith;
  • Permanent residents who entered into a marriage in good faith where the marriage ended in divorce or annulment; and
  • Permanent residents who entered into a marriage in good faith, but either the spouse or the child were battered or subjected to extreme hardship by the U.S. citizen or lawful permanent resident spouse.
BATTERED SPOUSE PETITION

Generally, U.S. citizens (USC) and Lawful Permanent Residents (LPRs) must file an immigrant visa petition with the U.S. Citizenship and Immigration Services (USCIS) on behalf of a spouse or child, so that these family members may emigrate to or remain in the United States. Unfortunately, some USCs and LPRs, abuse their control of this process and subject their family members to coercion, extortion, or threaten to report them to the USCIS. In such a situation you may file a self-petition (an application that you file for yourself for immigration benefits) as a battered spouse, under the Violence Against Women Act (VAWA), while married to a U.S. citizen or lawful permanent resident to obtain lawful permanent residency. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries. The immigration provisions of VAWA allow certain battered spouses to file for immigration relief without the abusive spouse's assistance or knowledge, in order to seek safety and independence from the abuser.

What are the basic requirements to seek a waiver on joint petitioning?

The documents required are:

  • Form I-751, Petition to Remove the Conditions on Residence;
  • Copy of Form I-551, Permanent Resident Card;
Documented evidence showing that you entered the marriage in good faith and not to evade the immigration laws of the U.S. Examples of such evidence includes, but is not limited to:
  • Evidence of cohabitation, such as copies of lease agreements showing that you and your spouse lived in the same place;
  • Copies of documents proving that that you and your spouse owned property together;
  • Proof of joint assets, joint bank accounts, joint insurances, joint loans, etc
  • Photographs of you and your spouse together and with family and friends throughout the course of your relationship
  • Proof of travel together (hotel reservations, flight confirmations)
  • Proof of continuous communication (emails, text messages, phone records)
  • Copies of birth certificates of your children,
  • Expert testimony proving that you or your child were battered or subjected to extreme mental cruelty. Examples of such testimony includes, but is not limited to:
    • Copies of police and medical records detailing evidence of physical abuse;
    • Evaluations by clinical social workers and psychologists showing evidence of mental cruelty; and
    • Copy of your divorce decree if your marriage was terminated because of physical abuse or mental cruelty.
  • Evidence that you were not at fault in failing to file the petition on time, if applicable;
  • Evidence that the termination of your conditional resident status and your removal from the country will cause you extreme hardship, includes but is not limited to the following:
  • Form I-751, Petition to Remove the Conditions on Residence;
  • Copy of Form I-551, Permanent Resident Card; and
  • Evidence that your deportation would cause greater hardship than the hardships created when other aliens are removed from the U.S.

In evaluating the claim that your removal from the U.S. will cause you extreme hardship, the Service will only consider factors which arose after the date you obtained your conditional permanent residence.

Battered spouses filing self-petitions who can establish a "prima facie" case are considered "qualified aliens" for the purpose of eligibility for public benefits.

Fore more information about the removal of conditions waiver please click here and here.

For more resources regarding battered spouses and VAWA please click here.

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