The Battered Spouse Waiver allows conditional residents who have been battered or abused by their U.S. citizen or legal permanent resident spouse (or parent) to petition to remove conditions from their residence without the cooperation of their abuser. Conditional Residence is given to people who apply for permanent residency based on a marriage to a U.S. citizen or permanent resident spouse that is less than two years old at the time their residence is granted. A conditional permanent resident receives a Green Card valid for two years.
Generally, conditional residents must file a form I-751, Petition to Remove Conditions on Residence, jointly with their spouse through whom they obtained conditional status to remove the conditions from their residence within 90 days before the expiration date of their two-year green card. Except for the two-year expiration date, conditional resident status is identical to lawful permanent residence. Conditional residents can work, travel in and out of the United States, and count the time they spend as conditional residents towards the residence requirements for U.S. citizenship. To remove conditions from their residence, they must prove that they did not marry for the sole purpose of obtaining a green card.
However, U.S. immigration laws provide that if an immigrant spouse has been battered or subjected to extreme cruelty from their spouse, they are entitled to submit a form I-751 battered spouse waiver to remove the conditions from their permanent resident status, without waiting two years and without the cooperation from their U.S. citizen spouse.
Conditional residents may also self-petition to remove the condition on their residence through other available waivers to the joint-filing rule for which they qualify. Conditional residents who would be subjected to extreme hardship if returned to their home country, whose spouse has died, or who have divorced, may also apply for a waiver. I-751 waiver petitions may be filed at any time after being granted conditional residence and before removal from the United States.
Conditional residents filing a Battered Spouse Waiver petition must also provide sufficient evidence to satisfy the following requirements:
The marriage was a bona fide marriage
The spouse (or spouse’s child) has been battered or subjected to extreme cruelty by the citizen or lawful permanent resident petitioning spouse during the marriage
The victim has conditional legal permanent residence as a spouse of a U.S. citizen or legal permanent resident whose marriage was less than 2 years old at the time they obtained residence
Children of a conditional resident spouse must also file a form I-751 to remove the conditions from their residence if they immigrate within two years of the parent’s marriage to a U.S. citizen or LPR. They are also eligible to apply for any of the waivers to the joint filing requirement, including the battered spouse waiver if they had been battered or subjected to extreme cruelty by the citizen or lawful permanent resident parent or the conditional resident parent.
Battery or Extreme Cruelty
Fortunately, U.S. immigration laws define ‘battery or extreme cruelty’ very broadly. The definition includes not only physical abuse, but all forms of harmful behavior including, psychological, emotional, financial, and verbal abuse. When filing a I-751 battered spouse waiver, or any battered spouse case, the immigration officer must apply the “any credible evidence” standard. Under this standard, USCIS must consider any credible evidence relevant to the case. This means that no one particular document, such as a police report, can be required to satisfy the I-751 battered spouse waiver requirements. Documentation of battery and extreme cruelty can be in the form of any of the following: police reports, court transcripts or court orders including civil protection order documentation, medical documentation of injuries (reports or photographs), detailed personal declaration from the victim, a psychological evaluation, letters from domestic violence or sexual assault service providers, documentation from counselor or therapist detailing how conduct of abuser can be considered abusive behavior, letters from family, friends, or co-workers who can write about their personal knowledge of the abusive behavior, and criminal record of the abuser, especially if there is a history of abusive behavior and violence.
The conditional resident must remove the conditions from their residence or else their conditional resident status will be terminated and they may be placed in removal proceedings. If the battered spouse waiver is approved, the conditions will be removed, and the person will obtain a 10-year green card.
To determine if you qualify for a battered spouse waiver or VAWA self-petition or another form of immigration relief, you should consult an immigration lawyer with experience in VAWA applications and domestic violence.
Attorney Peterkin is a certified Domestic Violence Advocate and licensed Immigration Attorney.
Call us to discuss your immigration needs 321-325-1125.
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