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When Marriage Is Not Enough: Facing Deportation Because of Your Spouse

By Heather Poole

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 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.

About the author:
Attorney Heather L. Poole practices family-based U.S. immigration law in Pasadena, CA. She supervises abuse-based immigration cases at the LA Commission on Assaults Against Women and is a member of the "Violence Against Women experts" list of the National Lawyers Guild. She can be reached by email: heather@humanrightsattorney.com, or visit http://www.humanrightsattorney.com

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