deSeguin Immigration Law llc

Normally, when a foreign national marries a United States citizen (or lawful permanent resident), it is the US citizen who submits a petition to the United States Immigration Service to obtain legal status for his or her foreign spouse.  In abusive situations, the US citizen spouse will frequently use the immigration process as one more means to control and abuse his or her foreign spouse.  Recognizing this, the laws from VAWA allow abused or battered spouses to petition for themselves and basically leaves the abusive United States citizen out of the process.

The “self-petition” is filed on immigration form I-360.  With the completed form, you will be required to submit documentary proof that 

1. Your marriage was entered in good faith to establish a life together;
2. Your spouse is a United States citizen or lawful permanent resident;
3. You resided with the spouse after your marriage;
4.  Your spouse was abusive to you; and,
5. You are a person of good moral character.

Before you apply for a VAWA with the USCIS, you should consult an immigration lawyer with experience in VAWA self-petitioning.  The law is not particularly complicated, but meeting the proof requirements to the satifaction of USCIS can be difficult.  In this process,  an immigration attorney can advise and support you, so that your petition has the best chances for success.    Our office has experience in advising self-petitioners and providing compassionate legal guidance to individuals who have endured an abusive relationship.  If you think you may be eligible to self-petition under VAWA and need a VAWA specialist, phone our office in Denver to schedule a consultation.

You cannot apply for VAWA Cancellation of Removal unless you are in removal/deportation proceedings before an immigration judge.  In removal or deportation proceedings, immigrants who are victims of abuse by a United States citizen or a lawful permanent resident spouse may  be eligible to apply for VAWA Cancellation of Removal to stop their deportation/removal from the USA and be accorded lawful permanent residence in the US.

The application is submitted to the immigration court, and it is the immigration judge who approves or denies your case.

Pursuant to INA §§ 240A(b)(2)(A),  under the special rules for battered spouses and children, you must prove the following:  

1. That you are the spouse or child of the abuser;
2. The abuser is a US citizenship or  lawful permanent resident of the US;
3.  You have lived continuously in the United States for 3 years immediately preceding the filing of the application;
4. While you were in the United States, you were battered or subject to extreme cruelty by the United States citizen or legal permanent resident spouse or parent;
5. You have been a person of good moral character during the 3-year period immediately preceding your  application. (The immigration judge may be permitted to find good moral character even if there is an act or conviction that would otherwise bar such a finding, if the action or crime was connected to the abuse.);
6. You,  your child, or the parent of the abused child would suffer “extreme hardship” if deported;
7.  You are not inadmissible on certain serious grounds (criminal convictions, etc.).

Given the potential for deportation associated with applying for cancellation of removal before an immigration judge, it is important that you  find legal representation to  have the greatest chance of being successful with your VAWA application.

If you already received your two year resident card, but you are being abused by your US citizen  or lawful permanent resident spouse, you may be able to file an I-751 by yourself.   

Normally an immigrant spouse,  who has received the two year resident card based on marriage, is required to file an I-751 petition  jointly with his or her spouse in the 90 days before the two year card expires.  However, you may file form I-730 without your spouse’s signatue if  “You entered the marriage in good faith, but you have been battered or subject to extreme cruelty by your petitioning spouse.”   If you are applying under this waiver, you may apply even before the 90 day period before your condition residence card expires.  USCIS will want to see proof that the marriage was entered into in good faith (ie it was not a sham to obtain immigration benefits) and  proof that you have been physically and/or emotionally abused by your spouse.