11 Sep Spousal abuse can be a basis of waiver of joint petition to remove condition on residence
By Atty. Crispin Caday Lozano
If you entered into a good faith marriage but after the marriage your U.S. citizen of lawful permanent resident spouse is abusing you, then you do not have to sacrifice to get your permanent resident. You can immediately apply for a waiver of joint filing based on the information and document that you are an abused spouse. Your dependent children can be included in this application to remove condition on residence.
If your abusive spouse has not filed a permanent resident petition for you, you may file the petition by yourself with the proof that you are an abused spouse. A self petitioner who married an abusive U.S. citizen may file an adjustment of status at the same time that the self petition is filed. If the spouse of the self petitioner is a lawful permanent resident he or she will have to wait until the I-360 petition is approved and the priority date for the second preference is current. VAWA also applies to men who are abused by their spouse. Spousal abuse includes physical or psychological abuse. In physical abuse the best evidence is a police report or medical report while in a psychological abuse the evidence could be an evaluation by a psychologist or psychiatrist.
Question: Who qualifies for self-petition and cancellation of removal under Violence against Women Act (VAWA)?
Answer: The following qualify for self-petition and cancellation of removal:
1.Abused spouse, former spouse, or intended spouse of a U.S. citizen or lawful permanent resident.
2.Abused child of U.S. citizen or lawful permanent resident.
3.Non-abusive parent of a child who was subjected to domestic violence or extreme cruelty by a U.S. citizen or lawful permanent resident parent.
Question: When can a self petitioner file an application for work authorization?
Answer: A self petitioner is eligible for employment authorization upon approval of the self petition or upon filing of adjustment of status whichever comes first.
Question: What are the advantages of adjustment of status under VAWA compared to the regular adjustment of status?
Answer: VAWA adjustment of status has the following advantages:
1.VAWA self petitioner need not have been inspected or admitted into the U.S. This means that “Entered without Inspection” or “present without authorization” are eligible under VAWA.
2.Having worked without authorization is not a bar to adjustment.
3.Having overstayed a nonimmigrant visa or having violated the terms of nonimmigrant visa is not a bar to adjustment.
4.Having been admitted as a nonimmigrant under “D” [crewmember], “C” [alien in transit without a visa], or “S” [government witness] does not disqualify self petitioner from adjustment of status. The regular adjustment of status provision does not allow them to adjust.
5.Having been admitted under Visa Waiver program is not a bar to adjustment.
6.Self petitioners do not have to pay the $1000 penalty if they adjust status under Sec. 245(i).
Note: This is not a legal advice. The Law Office of Crispin C. Lozano has successfully received approvals for many VAWA cases