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Posted (edited)

Are you familiar with immigration law, and my circumstances in particular?

You sound like you're hinting that there is a way for me to stay if I could prove my wife was interfering/ obstructing my application for PR.

That sounds like something that would be difficult to prove......then again I'm no immigration lawyer..... are you?

Edited by Fuzzy
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Posted
Are you familiar with immigration law, and my circumstances in particular?

You sound like you're hinting that there is a way for me to stay if I could prove my wife was interfering/ obstructing my application for PR.

That sounds like something that would be difficult to prove......then again I'm no immigration lawyer..... are you?

You should consult an immigration attorney and share with that individual all of the pertinent facts. However, it is plausible that if properly constructed, her engaging in and flaunting an adulterous relationship all the while unwilling to end the marriage, could be construed as a form of psychological abuse.

Basic Procedure for Immigration as the Spouse of a Citizen or Permanent Resident See this link:

One of the easiest and most frequently employed means to legal immigration is through a family relationship. (16) Many immigrants obtain legal status through marriage to a U.S. citizen or lawful permanent resident (green card holder). The spouse of a U.S. citizen is considered an immediate relative not subject to the country quotas to which other immigrants are subject, and is therefore immediately eligible for an immigrant visa if the sponsor's petition is approved. (17) A permanent resident may also sponsor his or her spouse, although subject to greater restrictions. These immigrants are subject to two sets of numerical quotas: those established for the particular category of immigrant, and those established for the immigrant's country of origin. (18)

Although the INA is facially neutral in its treatment of spouses, in practice the great majority of immigrant spouses are women. (19) Because the sponsoring spouse must file a petition for the immigrant spouse, the immigrant spouse's immigration status is in the hands of the sponsor. If the sponsoring spouse decides not to file the petition, or decides to withdraw it after filing, the immigrant spouse has little recourse and must either find another route to legal immigration, remain in the United States illegally, or return to her country of origin.

C. Historical Protections and Barriers for Battered Immigrants

In 1986, Congress amended the INA by passing the Immigration Marriage Fraud Amendments of 1986. (20) These amendments were enacted in response to perceived abuses of spouse-sponsored immigration. Congress found that while:

[h]istorically, U.S. immigration policy has recognized the importance of protecting nuclear families from separation by permitting immediate family members of U.S. citizens to immigrate to the United States without numerical limitation[,] ... aliens who either cannot otherwise qualify for immigration to the United States or who, though qualified, are not willing to wait until an immigrant visa becomes available, frequently find it expedient to engage in a fraudulent marriage in order to side-step the immigration law. Surveys conducted by the Immigration and Naturalization Service have revealed that approximately 30% of all petitions for immigrant visas involve suspect marital relationships. (21)

Among other provisions, the new law created criminal penalties for citizens and noncitizens who entered into a marriage for the purposes of circumventing immigration laws. (22) The new law also raised the barrier to permanent resident status for immigrant spouses by establishing a two-year period of "conditional" permanent resident status. (23) A noncitizen spouse whose petition is approved is only granted permanent resident status conditional upon the marriage having been entered into in good faith, (24) the filing of a joint petition to remove the conditional status within ninety days of the second anniversary of the approval of the initial petition, (25) and the participation of both spouses in an INS interview within ninety days of the approval of the second petition. (26)

The added burdens of a two-year waiting period for permanent resident status, the tiling of a second petition, and the joint appearance at an INS interview increase the power that the sponsoring spouse wields over the immigration status of the noncitizen spouse. Even if the citizen or permanent resident spouse agrees to sponsor the immigrant spouse and files the initial petition, he may still prevent her from achieving unconditional permanent residence if he declines to file the second petition or appear for the joint interview. In effect, the nonimmigrant spouse controls the immigration status of his spouse for an additional two years under the 1986 amendments.

Until the 1994 passage of the Violence Against Women Act, if her spouse refused to file an immigration petition, a physically battered or emotionally abused spouse could only hope to have her deportation cancelled through an "extreme hardship waiver," (27) a provision that still exists. This decision was left solely to the discretion of the Immigration and Naturalization Service (INS, now the Bureau of Citizenship and Immigration Services, or BCIS) and the Attorney General. (28) The extreme hardship waiver provides that deportation (now called removal) may be cancelled, and legal permanent residency conferred, if an inadmissible or deportable noncitizen has been in the United States for ten years, has demonstrated "good moral character," has not been convicted of certain crimes, and whose removal "would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child" who is a U.S. citizen or permanent resident. (29) This extreme hardship standard is a very difficult one to meet, and because the hardship must be not to the noncitizen, but to a citizen or permanent resident in the noncitizen's immediate family, it is rarely approved. (30)

Political asylum is difficult to obtain for any immigrant, and most battered immigrants do not qualify for political asylum as a result of the battering they have suffered, even if the abuse occurred in their country of origin. The law of asylum provides that a noncitizen living in the United States may be granted asylum if he or she is "persecuted or ... has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." (31) As the persecution must have occurred in the noncitizen's country of origin or habitual residence, abuse in the United States for any reason would not meet the statutory requirements for asylum. Abuse by a spouse or partner, even if it occurred in the noncitizen's country of origin, is unlikely to qualify as persecution on any of the enumerated grounds unless the victim of the battery is specifically targeted on the basis of her race, religion, nationality, membership in a social group, or political opinion; persecution on the basis of gender by itself is, unfortunately, not a basis for political asylum. (32)

D. 1990 Battered Spouse Waiver Amendments

In 1990, Congress enacted legislation that permitted self-petition for legal permanent resident status in some cases, thus permitting battered spouses to escape the control of their batterers. (33) Although the 1990 amendments did not completely authorize battered spouses to self-petition, they did waive the conditional residency requirement for a battered immigrant who entered into marriage in good faith and "was battered by or was the subject of extreme cruelty perpetrated by his or her spouse." (34) These amendments attempted to address the problem created by the Immigration Marriage Fraud Amendments: that women who married abusive spouses were trapped in those marriages for two years. (35)

E. The Violence Against Women Act

With the Violence Against Women Act of 1994 (VAWA 1994), Congress sought to address some of the inequities inherent in U.S. immigration law as part of its larger goal of preventing violence against women. (36) The immigration provisions of VAWA 1994 were specifically directed toward offering greater protection and benefits for battered immigrant women and children than the 1990 amendments provided. First, as discussed above, the new law allowed battered immigrants married to citizens or lawful permanent residents to self-petition for permanent resident status, provided the marriage was entered into in good faith and deportation would result in extreme hardship to the immigrant or her child. (37) In addition, the immigrant must have demonstrated good moral character. (38) During the marriage, the petitioning immigrant or her child must have been battered by a spouse who is a U.S. citizen or permanent resident, and the battered immigrant must have resided with the battering spouse. (39)

Second, another provision lowered the evidentiary burden placed on the immigrant when submitting a petition. (40) Prior to VAWA, battered spouses were required by federal regulations to submit an "evaluation of a professional recognized by the Service as an expert in the field." (41) While that requirement remains in the Code of Federal Regulations, in VAWA 1994 Congress directed the Attorney General, as head of the INS, to "consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General." (42)

Third, VAWA 1994 also created a special means of suspension of deportation for battered spouses and children. (43) The statute provided that deportation be suspended for an immigrant who:

has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application; has been battered or subjected to extreme cruelty in the United States by a spouse or parent who is a United States citizen or lawful permanent resident (or is the parent of a child of a United States citizen or lawful permanent resident and the child has been battered or subjected to extreme cruelty in the United States by such citizen or permanent resident parent); and proves that during all of such time in the United States the alien was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or the alien's parent or child. (44)

Other noncitizens seeking to cancel removal (suspend deportation) must demonstrate that deportation will result in hardship to the noncitizen's U.S. citizen or permanent resident child or parent. (45) Battered immigrants, however, may demonstrate hardship to themselves or to immediate relatives who need not be citizens or lawful permanent residents.

"diaddie mermaid"

You can 'catch' me on here and on FBI.

Posted
Are you familiar with immigration law, and my circumstances in particular?

You sound like you're hinting that there is a way for me to stay if I could prove my wife was interfering/ obstructing my application for PR.

That sounds like something that would be difficult to prove......then again I'm no immigration lawyer..... are you?

You should consult an immigration attorney and share with that individual all of the pertinent facts. However, it is plausible that if properly constructed, her engaging in and flaunting an adulterous relationship all the while unwilling to end the marriage, could be construed as a form of psychological abuse.

Basic Procedure for Immigration as the Spouse of a Citizen or Permanent Resident See this link:

One of the easiest and most frequently employed means to legal immigration is through a family relationship. (16) Many immigrants obtain legal status through marriage to a U.S. citizen or lawful permanent resident (green card holder). The spouse of a U.S. citizen is considered an immediate relative not subject to the country quotas to which other immigrants are subject, and is therefore immediately eligible for an immigrant visa if the sponsor's petition is approved. (17) A permanent resident may also sponsor his or her spouse, although subject to greater restrictions. These immigrants are subject to two sets of numerical quotas: those established for the particular category of immigrant, and those established for the immigrant's country of origin. (18)

Although the INA is facially neutral in its treatment of spouses, in practice the great majority of immigrant spouses are women. (19) Because the sponsoring spouse must file a petition for the immigrant spouse, the immigrant spouse's immigration status is in the hands of the sponsor. If the sponsoring spouse decides not to file the petition, or decides to withdraw it after filing, the immigrant spouse has little recourse and must either find another route to legal immigration, remain in the United States illegally, or return to her country of origin.

C. Historical Protections and Barriers for Battered Immigrants

In 1986, Congress amended the INA by passing the Immigration Marriage Fraud Amendments of 1986. (20) These amendments were enacted in response to perceived abuses of spouse-sponsored immigration. Congress found that while:

[h]istorically, U.S. immigration policy has recognized the importance of protecting nuclear families from separation by permitting immediate family members of U.S. citizens to immigrate to the United States without numerical limitation[,] ... aliens who either cannot otherwise qualify for immigration to the United States or who, though qualified, are not willing to wait until an immigrant visa becomes available, frequently find it expedient to engage in a fraudulent marriage in order to side-step the immigration law. Surveys conducted by the Immigration and Naturalization Service have revealed that approximately 30% of all petitions for immigrant visas involve suspect marital relationships. (21)

Among other provisions, the new law created criminal penalties for citizens and noncitizens who entered into a marriage for the purposes of circumventing immigration laws. (22) The new law also raised the barrier to permanent resident status for immigrant spouses by establishing a two-year period of "conditional" permanent resident status. (23) A noncitizen spouse whose petition is approved is only granted permanent resident status conditional upon the marriage having been entered into in good faith, (24) the filing of a joint petition to remove the conditional status within ninety days of the second anniversary of the approval of the initial petition, (25) and the participation of both spouses in an INS interview within ninety days of the approval of the second petition. (26)

The added burdens of a two-year waiting period for permanent resident status, the tiling of a second petition, and the joint appearance at an INS interview increase the power that the sponsoring spouse wields over the immigration status of the noncitizen spouse. Even if the citizen or permanent resident spouse agrees to sponsor the immigrant spouse and files the initial petition, he may still prevent her from achieving unconditional permanent residence if he declines to file the second petition or appear for the joint interview. In effect, the nonimmigrant spouse controls the immigration status of his spouse for an additional two years under the 1986 amendments.

Until the 1994 passage of the Violence Against Women Act, if her spouse refused to file an immigration petition, a physically battered or emotionally abused spouse could only hope to have her deportation cancelled through an "extreme hardship waiver," (27) a provision that still exists. This decision was left solely to the discretion of the Immigration and Naturalization Service (INS, now the Bureau of Citizenship and Immigration Services, or BCIS) and the Attorney General. (28) The extreme hardship waiver provides that deportation (now called removal) may be cancelled, and legal permanent residency conferred, if an inadmissible or deportable noncitizen has been in the United States for ten years, has demonstrated "good moral character," has not been convicted of certain crimes, and whose removal "would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child" who is a U.S. citizen or permanent resident. (29) This extreme hardship standard is a very difficult one to meet, and because the hardship must be not to the noncitizen, but to a citizen or permanent resident in the noncitizen's immediate family, it is rarely approved. (30)

Political asylum is difficult to obtain for any immigrant, and most battered immigrants do not qualify for political asylum as a result of the battering they have suffered, even if the abuse occurred in their country of origin. The law of asylum provides that a noncitizen living in the United States may be granted asylum if he or she is "persecuted or ... has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." (31) As the persecution must have occurred in the noncitizen's country of origin or habitual residence, abuse in the United States for any reason would not meet the statutory requirements for asylum. Abuse by a spouse or partner, even if it occurred in the noncitizen's country of origin, is unlikely to qualify as persecution on any of the enumerated grounds unless the victim of the battery is specifically targeted on the basis of her race, religion, nationality, membership in a social group, or political opinion; persecution on the basis of gender by itself is, unfortunately, not a basis for political asylum. (32)

D. 1990 Battered Spouse Waiver Amendments

In 1990, Congress enacted legislation that permitted self-petition for legal permanent resident status in some cases, thus permitting battered spouses to escape the control of their batterers. (33) Although the 1990 amendments did not completely authorize battered spouses to self-petition, they did waive the conditional residency requirement for a battered immigrant who entered into marriage in good faith and "was battered by or was the subject of extreme cruelty perpetrated by his or her spouse." (34) These amendments attempted to address the problem created by the Immigration Marriage Fraud Amendments: that women who married abusive spouses were trapped in those marriages for two years. (35)

E. The Violence Against Women Act

With the Violence Against Women Act of 1994 (VAWA 1994), Congress sought to address some of the inequities inherent in U.S. immigration law as part of its larger goal of preventing violence against women. (36) The immigration provisions of VAWA 1994 were specifically directed toward offering greater protection and benefits for battered immigrant women and children than the 1990 amendments provided. First, as discussed above, the new law allowed battered immigrants married to citizens or lawful permanent residents to self-petition for permanent resident status, provided the marriage was entered into in good faith and deportation would result in extreme hardship to the immigrant or her child. (37) In addition, the immigrant must have demonstrated good moral character. (38) During the marriage, the petitioning immigrant or her child must have been battered by a spouse who is a U.S. citizen or permanent resident, and the battered immigrant must have resided with the battering spouse. (39)

Second, another provision lowered the evidentiary burden placed on the immigrant when submitting a petition. (40) Prior to VAWA, battered spouses were required by federal regulations to submit an "evaluation of a professional recognized by the Service as an expert in the field." (41) While that requirement remains in the Code of Federal Regulations, in VAWA 1994 Congress directed the Attorney General, as head of the INS, to "consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General." (42)

Third, VAWA 1994 also created a special means of suspension of deportation for battered spouses and children. (43) The statute provided that deportation be suspended for an immigrant who:

has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application; has been battered or subjected to extreme cruelty in the United States by a spouse or parent who is a United States citizen or lawful permanent resident (or is the parent of a child of a United States citizen or lawful permanent resident and the child has been battered or subjected to extreme cruelty in the United States by such citizen or permanent resident parent); and proves that during all of such time in the United States the alien was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or the alien's parent or child. (44)

Other noncitizens seeking to cancel removal (suspend deportation) must demonstrate that deportation will result in hardship to the noncitizen's U.S. citizen or permanent resident child or parent. (45) Battered immigrants, however, may demonstrate hardship to themselves or to immediate relatives who need not be citizens or lawful permanent residents.

Thank you. I will look into this.

Filed: Citizen (apr) Country: Canada
Timeline
Posted

I really hope it works out for you, best of luck!

Hugs

N-400

10/26/09 Sent application to Lewisville TX.

10/27/09 Rec'd Application signed by B. Conteh

10/29/09 Check cashed

11/02/09 Rec'd NOA date showing 10/29/09

11/09/09 Rec'd letter Bio Appointment

11/17/09 Bio Appointment 8am

11/20/09 Called FBI-Prints were sent back to USCIS same day.

12/03/09 Rec'd email from USCIS that the RFE was a mistake.

12/04/09 Rec'd email from USCIS saying that I have been transferred for an interview.

12/07/09 Rec'd letter for interview on 1/11/10 @11am in Fairfax, VA.

01/11/10 Interview completed. Passed test decision can't be made.

03/02/10 Contacted Senator's office...No reply yet!

03/04/10 Senator office called says can take up to 120 days.

04/12/10 Service request filed.

05/12/10 Contacted Senator's office again.

05/12/10 Told over the phone that I was approved. Believe it when I see it!

06/04/10 Senators office tells me the adjudicator who interviewed me thinks I have a criminal record. Send out all paper work showing no criminal record.

06/08/10 Leave for Canada

06/09/10 Get RCMP certificate showing no criminal record. Fax off to senators office.

06/23/10 Approved for Citizenship

06/24/10 USCIS contacts Senators office

06/28/10 Find out that I have been approved for citizenship and they are just waiting to schedule my oath.

07/12/10 Put in line for oath ceremony....wonder how long that will be!

08/18/10 Called USCIS confirmed they sent oath letter for 09/17/2010 at 9am.

09/17/10 Oath ceremony at 9am..... US Citizen!!!! Applied for passport.

Posted

Hi Fuzzy.... I have been following your thread, just haven't posted.... I understand how you're feeling. Better days are ahead.

Jen

8-30-05 Met David at a restaurant in Germany

3-28-06 David 'officially' proposed

4-26-06 I-129F mailed

9-25-06 Interview: APPROVED!

10-16-06 Flt to US, POE Detroit

11-5-06 Married

7-2-07 Green card received

9-12-08 Filed for divorce

12-5-08 Court hearing - divorce final

A great marriage is not when the "perfect couple" comes together.

It is when an imperfect couple learns to enjoy their differences.

  • 5 weeks later...
Posted
Hi Fuzzy.... I have been following your thread, just haven't posted.... I understand how you're feeling. Better days are ahead.

Jen

Looking at your timeline Jen I think you've been through a rough time too. Nice to hear some optimistic words from you though and I totally agree with you.

Latest update on my story is I have chosen to go back to England. I have a flight booked for next month so I can be home for Christmas. I feel it's for the best and I'm looking forward to starting fresh.

I have the divorce paperwork together it just needs to be signed by both of us and mailed.

I have a question though... We got married in Ilinois, how can I get divorced without appearing in court in the US? I can't get in the country as I'll have a 10 year ban. Please tell me I won't have to stay married for 10 years.... the thought of this is crazy!

Any help greatly appreciated and thanks once again for input in advance.

Fuzzy

Filed: Citizen (apr) Country: Brazil
Timeline
Posted
I have the divorce paperwork together it just needs to be signed by both of us and mailed.

I have a question though... We got married in Ilinois, how can I get divorced without appearing in court in the US? I can't get in the country as I'll have a 10 year ban. Please tell me I won't have to stay married for 10 years.... the thought of this is crazy!

Any help greatly appreciated and thanks once again for input in advance.

Fuzzy

i wasn't even on the continent when i was divorced in texas - i was in turkey/iraq. my attorney wasn't even present that day in court as we had an agreed division of property with attorney representation.

* ~ * Charles * ~ *
 

I carry a gun because a cop is too heavy.

 

USE THE REPORT BUTTON INSTEAD OF MESSAGING A MODERATOR!

  • 1 month later...
Posted (edited)

Just wanted to let everyone know that I mananged to get divorced in America and I returned back to England. Hopefuly 2009 and England will be a little kinder to me :)

I'm curious to see how the 10 year ban works. I know when I checked in with my airline, they took the i-94 card out of my passport when I left America. Will they use this to process that I have left and inturn will this show that I overstayed and trigger the ban? I could have taken the i-94 out myself... what other way would they beable to know if I had left the country?! Would the airline have entered my passport details and would this info be passed onto immigration?

Is there a way to check to see if I am definately banned without physically getting on a plane and finding out when I get to America?

If there is a chance that I will not have a ban I will be overjoyed as I have a lot of friends in America now and would love to keep my right to visit as a tourist on the VWP!

If anyone can shed light on this matter I would be very greatful.

Much love,

Fuzzy.

Edited by Fuzzy
Filed: Country: Spain
Timeline
Posted
Just wanted to let everyone know that I mananged to get divorced in America and I returned back to England. Hopefuly 2009 and England will be a little kinder to me :)

I'm curious to see how the 10 year ban works. I know when I checked in with my airline, they took the i-94 card out of my passport when I left America. Will they use this to process that I have left and inturn will this show that I overstayed and trigger the ban? I could have taken the i-94 out myself... what other way would they beable to know if I had left the country?! Would the airline have entered my passport details and would this info be passed onto immigration?

Is there a way to check to see if I am definately banned without physically getting on a plane and finding out when I get to America?

If there is a chance that I will not have a ban I will be overjoyed as I have a lot of friends in America now and would love to keep my right to visit as a tourist on the VWP!

If anyone can shed light on this matter I would be very greatful.

Much love,

Fuzzy.

Check with the nearest US Consulate. Have them run your passport and see what they say.

I finally got rid of the never ending money drain. I called the plumber, and got the problem fixed. I wish her the best.

Filed: K-1 Visa Country: Wales
Timeline
Posted

You are not eligible to use the VWP.

And a B Visitor Visa aplication requires you to declare your prior visits. Not that they do not know.

“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

 
Didn't find the answer you were looking for? Ask our VJ Immigration Lawyers.

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