If you’ve become a victim of domestic violence committed against you by your citizen/greencard holder spouse, you may qualify for permanent residency even if you are separated from your citizen /greencard holder spouse and he/she is not willing to cooperate to help you to exchange your temporary greencard for a permanent one.
To qualify for permanent residency based on battered spouse provisions
The battered spouse:
Must be legally married to the U.S. citizen or lawful permanent resident who committed the battery. Battered spouse petition may also be filed if the marriage was terminated by divorce due to domestic violence/abuse within the two years prior to filing a self-petition or by death of the abusive spouse.
Must have been battered in the United States unless the abusive spouse is an employee of the United States government or the member of the army.
Must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage.
Must be a person of good moral character.
WHAT DOES MEAN “BATTERED”? What kind of abuse /mistreatment make me a battered spouse?
The approved “battered spouse” petitions usually contain graphic images of bruised up faces and bodies, blood stains, severe bodily injuries, medical reports from the hospital /doctor, police reports about the incidents of domestic violence, restraining orders against the batterer spouse, witness accounts of the violence that was committed by a citizen /greencard holder spouse against the victim spouse and more evidence of documented physical abuse such as victim’s stay in a shelter for battered women and social worker’s declarations. All this evidence must directly show that the harm to the victim battered spouse was caused by violent attacks of the batterer citizen /lawful permanent residence. Even if there is substantial evidence of injuries, the alien spouse must show that it is their citizen /greencard holder spouse who committed the domestic violence against the alien spouse and brought about these injuries.
Even though the battered spouse cases are usually based on physical violence, a persistent pattern of sadistic emotional abuse, as documented by the hospital or doctor’s records coupled with documented threats of physical abuse and possibly witness statements and detailed declaration about the verifiable incidents of emotional abuse that led to severe psychiatric disorder may also qualify you as a battered spouse. Suicide attempts, panic attacks, anxiety, nervous breakdowns, loss of sleep, psychotic episodes if directly caused by abusive citizen/greencard holder spouse may be sufficient grounds for approval of battered spouse petition.
However, your words alone, without any documentary evidence, will not be enough to show that you qualify for battered spouse provision. Without reliable documentary evidence of abuse, unverified incidents of violence, arguments, angry verbal exchanges, offensive language and humiliation alone do not rise to the level of severe abuse required by battered spouse provisions. The majority of applicants who are denied battered spouse relief can not qualify for any other relief since at the time of the application their visas had already expired and their only relief was marriage based family reunification / adjustment of status filed by their batterer spouse. Once relationship with the citizen / greencard holder spouse was terminated, and the citizen/greencard holder spouse is no longer willing to cooperate to sign off on the exchange of the temporary greencard for a permanent one, the victim spouse becomes deportable as an illegal alien. The only relief available for deportable victim spouse is battered spouse special petition. Many victim spouses filed such petitions, but only the ones that qualified were approved!
Remember only consultation with qualified licensed immigration attorney will help you to understand whether you qualify for relief under battered spouse provisions. Feel free to call us at (213) 637-5623 for a free confidential consultation with our immigration attorney Dmitry Paniotto regarding your eligibility for battered spouse self-petition.
IMPORTANT INFORMATION ON HOW DIVORCE MAY AFFECT YOUR ELIGIBILITY FOR BATTERED SPOUSE SELF-PETITIONING
Self-petitioner does not have to remain married to the abusive spouse until the self-petition is approved
The regulations only require that the self-petitioning spouse be married at the time of filing. After the self-petition has been filed, legal termination of the marriage should not affect the self-petition, but it is advisable to talk to an immigration attorney before you are considering divorce to learn more about how dissolution of marriage may affect your eligibility for self-petitioning as a battered spouse. Statutory changes, effective October 28, 2000, allow for the marriage to have been terminated within two years prior to the date of filing (some restrictions apply).
Can a divorced spouse seek relief through self-petitioning?
The law changed after October 28, 2000 to allow for the marriage to have been terminated (there are some restrictions) within two years prior to the date of filing. A battered spouse who does not meet these restrictions may be eligible for cancellation of removal based on length of his/her presence in the United States. To qualify he/she must meet the other requirements that would be necessary for approval of a self-petition and must have been physically present in the U.S. for 3 years immediately preceding the filing of the application for cancellation of removal.
A self-petition will also be denied if the self-petitioner re-marries before filing or after filing and before the self-petition is approved. Remarriage after the self-petition has been approved will not affect the validity of the approved I-360 self-petition.
What if the abusive US citizen/LPR did file a Form I-130 petition on behalf of the battered spouse which is either still pending or was withdrawn?
A self-petitioner who is the beneficiary of a Form I-130 petition filed by the abusive spouse will be able to transfer the priority date of the Form I-130 petition to the I-360 self-petition.