Immigrant communities are often overlooked and marginalized by society. The most vulnerable amongst them are the abused spouses of citizens or residents. Imagine that you are in a new country where you do not have a support system, you do not know your rights and you do not know where to go for help. Your spouse, who is supposed to be your number one partner in life is telling you that you must do certain things to stay in their good graces, otherwise you will be subject to physical or mental abuse, torture that you’re going to be deported, threats that they won’t sponsor your children to join you as they promised and other demeaning and painful acts. This occurs all over the US on a daily basis and no immigration attorney is a stranger to it.
Fortunately, there is a path forward without the abuser. The Violence Against Women Act or VAWA provides the foreign spouse (as well as their dependent children) with the means to legalize their status by proving the essential elements of a spousal abuse case. The law applies equally to men and women despite the Act’s title.
The abused must show that they are legally married to a US citizen or lawful permanent resident. In fact, they can even be divorced if a petition as abused spouse is made within two years of the divorce. Next, the petitioner must show that there was a good faith relationship by providing evidence of cohabitation such as joint accounts, taxes, insurance or other proof. The immigrant must also prove that he or she is a person of good moral character by including police clearances or by showing that convictions or arrests were connected to the abuse that they suffered. For example, if an immigrant was arrested for fighting back against her husband’s physical abuse, this would not impact a finding that she has good moral character.
The essential element of a successful case is proving abuse which can range from police reports, medical records, photos, witness accounts or even solely the abused’s statement detailing what she has been through. Oftentimes, immigrants are afraid (particularly based upon their experiences in their home countries) to report abuse to any authorities. They oftentimes, unfortunately, suffer in silence until they are empowered to leave the abuser and set forth on their own path to legal status without them. Their spouses tell them that they’re here illegally and that they’ll call Immigration and Customs Enforcement or that they have no rights or other demeaning and usually untrue statements to gain control over them.
Abuse can be 100% emotional. Extreme cruelty can be proven by the immigrant by showing a pattern of threats or abusive acts by their spouse. As with any legal case, the devil is in the details. An immigrant can win his or her case with a very detailed account of what they have been through, how it made them feel, how they changed their behavior as a result of the abuse, how their life was restricted, how they coped and various other detailed descriptions of their plight.
The petition can be submitted simultaneously with an application to adjust status (green card) so that interim benefits such as permission to work and travel are processed int he interim. If the underlying VAWA case is approved, then the green card will be processed and if approvable, issued.
Certain general bars to immigration are forgiven in this category such as entering the US without inspection, working without permission, overstaying time permitted as a non-immigrant and proving that you will not become a public charge. Immigrants need not fear an abusive spouse as they have significant rights that they may not have known about.