Specifically, a spouse who is married to a U.S. citizen or lawful permanent resident and is the victim of abuse prior to the filing or approval of an application for permanent residency may be able to pursue a Green Card under VAWA protections or a nonimmigrant U visa. In addition, if an immigrant is married to a spouse who refuses to cooperate with the filing of Form I-751 before the end of the two-year conditional residency period, there are grounds on which to obtain a waiver of this requirement.
Options for a Noncitizen to Pursue a Visa Under VAWA
Under the federal Violence Against Women Act, generally referred to as VAWA, a spouse, parent, or child may be eligible to receive a Green Card as a lawful permanent resident if they have suffered from extreme cruelty or battery committed by a certain family member who is a U.S. citizen or lawful permanent resident.A victim of abuse can self-petition for permanent immigration status if the person who perpetrated the abuse is:
- Their spouse or former spouse who is a U.S. citizen
- Their parent who is a U.S. citizen
- The adult child who is a U.S. citizen
- Their spouse or former spouse who is a lawful permanent resident
- Their parent who is a lawful permanent resident
Options for a Noncitizen to Pursue a U Visa
When an individual has suffered mental or physical abuse as the victim of violent crime, they may be eligible for a U visa to allow them to remain lawfully in the U.S. While this type of visa does not provide a lawful permanent resident status with a Green Card if a recipient of a U visa remains in the U.S. for a continuous period of at least three years and they meet other requirements, they may be eligible to apply for permanent residence. The U visa can provide immigration relief and ultimately permanent status for a victim whose spouse is not a U.S. citizen or lawful permanent resident.To be eligible for a U visa, the victim of abuse must be helpful or likely to be helpful to law enforcement officials in the investigation or prosecution of criminal activity.
Relief for Conditional Permanent Residents
When a spouse gains permanent resident status on the basis of marriage and the marriage was not at least two years in length at the time of granting permanent resident status, then that status is considered conditional. That spouse stays on conditional status until they file and receive approval of Form I-751 Petition to Remove Conditions on Residence. The form requires the applicant to file jointly with their spouse which can be problematic when a spouse chooses to be uncooperative or is unable to file. Therefore, there are four options for seeking a waiver of the joint filing requirement.A conditional permanent resident spouse can request a waiver of the joint filing requirement on the grounds that:
- Their removal from the U.S. would result in extreme hardship
- They entered into their marriage in good faith but the marriage ended
- They entered into the marriage in good faith but during the marriage, the citizen or lawful permanent resident spouse subjected the conditional resident spouse (or their child) to extreme cruelty or battery
- They entered the marriage in good faith but their spouse passed away
To succeed in obtaining a waiver, it can be challenging to prove that a marriage was entered into in good faith. Assistance from an experienced immigration attorney can prove highly beneficial in these situations.