Should I apply for 751 battery waiver now or wait for divorce finalized?

[daru 4]

Also, annulments can happen with default judgements if he files for annulment and you don't fight it (which may require you to litigate, which in turn may require you to have a family lawyer on retainer; these are very expensive).

Most respectable lawyers will drag their feet at the idea of filing a frivolous annulment suit, but one can always find someone who will play along.

[daru 4]

An annulment does not prevent you from removing conditions but it would likely be based on a claim that you married under false pretenses and you don't want a court document to state such a thing.

An annulment may prompt for you to provide more justifications to USCIS.

Also, an annulment will give your spouse a clean slate to do it all over again with his next victim as your marriage will have never happened in the first place so he will get to deny everything for the rest of his life, and you will be deprived of closure.

[Biubiubiu 3]

29 minutes ago, daru said:

Divorce waiver is more straightforward because you don't have much else to prove than the same things you already proved in 2021.

However it does require a final judgement of divorce.

You can still ask to add the divorce waiver without providing the divorce decree, then they're gonna issue an RFE (when they look at the filing, which might take a while longer), then either you have it and provide it or you don't can't provide it on time and they will deny the filing.

However, you will still be able to refile I-751 later on with the divorce decree, as long as you haven't received an NTA (Notice to Appear, basically a summons to immigration courts for deportation).

In immigration court, you will have the right to fight deportation using any ground that you already claimed through I-751 waiver requests, so at such time if you did previously request for USCIS to add a divorce waiver to your then-current I-751, then in immigration court you will be able to provide the divorce decree (alongside your proof of bona fides marriage) and get your conditions removed.

 

Same as with abuse waiver, if you do request it, even if it's not approved, you'll be allowed to evidence battery or extreme cruelty during deportation proceedings to get your conditions removed.

 

The point of the abuse waiver is mostly to protect you against rogue actions of your spouse or ex-spouse.

The original purpose of the immigration provisions of VAWA, as marketed to both political sides, is to enable victims of abuse to have one fewer hindrance to cooperation with law enforcement against perpetrators of domestic abuse.

 

Fewer USCIS officers are trained to review abuse-based filings and it seems I-751 waivers are fairly rare so nobody really seems to know how long they take or how they move around.

 

You can request an abuse waiver if (a) you qualify, (b) you can prove it, (c) this waiver is more interesting to you than the divorce one.

Note that you can request both, but the abuse one is always reviewed first because of its ramifications, so although it's still useful to ask for more than one waiver so you have more than one ground you can use in immigration courts, you shouldn't both request waivers for grounds that you're not confident you'll eventually be able to prove.

 

If you request the abuse waiver, you will benefit from privacy and confidentiality provisions, and you will retain eligibility for 3-year naturalization.

Whatever waiver(s) you request, as long as there is at least one, then your spouse can't just withdraw their signature and have the case fall apart because the filing will have become individual.

In addition to that, if you request an abuse waiver, 

• USCIS will be barred from making any adverse determination based solely on information given either anonymously or by your abuser or any person who might be acting on their behalf
• If you get arrested while you have a pending or approved VAWA case, you won't be automatically referred to ICE
• USCIS will waive the requirement that you still be married and living with your abuser when reviewing an N-400 filing under the 3-year rule if you have a pending/approved B/EC I-751.

 

In order to qualify and in addition to the bona fides, you need to document, under the "Any credible evidence" evidentiary standard, at least one of the following:

1. One occurrence of battery toward you.
   Battery is physical violence.
   That includes many misdemeanors of domestic violence such as stalking (e.g. chasing you in traffic seemingly to assault you), menacing (e.g. making credible death threats, waving a deadly weapon to intimidate you), assault (e.g. hitting, punching, kicking, shoving, pulling hair, spitting on you, cutting/bruising/burning you, injuring you in any way), sexual assault, criminal mischief (damaging/destroying stuff around you is using physical violence in a way that creates an imminent risk of physical harm to you, and that's how battery is defined), etc.
    
2. One occurence of extreme cruelty toward you.
   Items under this category are sometimes one-time events, or acts unfolding over time.
   A few items for which one occurence is sufficient include crimes such as coercion/extortion; withholding medical assistance while you have a medical emergency; maliciously having you committed in a psych ward; inflicting serious injuries or death to your pets or your children.
   Some stuff like financial abuse, making you pay for everything, forcing you to work, forcing you to not work, taking away your paycheck, being frugal within the relationship while dissipating funds outside of it, these things count as extreme cruelty but are not really one-time things so you need to show a pattern of these.
    
3. Psychological abuse toward you that meets two criteria:
   1. You can prove that it follows a pattern over time (so it can't be a one-time thing, you need to prove repetition over a good while); I suggest you google "cycle of abuse" to see what the pattern looks like.
      USCIS tends to consider that this is a clinical finding which means that (a) they prefer if a professional third party (physician, social worker, police, etc) makes that finding and (b) even the honeymoon part is part of the pattern.
      There is case law on an AOS VAWA (I-360) case where a woman married with a US citizen had to prove that she experienced battery or extreme cruelty while married and on US soil and she underwent physical abuse in Mexico, fled to the US, her abuser contacted her and lovebombed her and she went back to Mexico where she was abused again. She won her case in appeal because the lovebombing is part of the clinical pattern of the cycle of abuse.
      If you're married with an alcoholic you know exactly what I'm talking about. Actually you said it yourself.
      Their being nice in-between drinks is how they keep us captive.
      This item is the best to accomodate abuse that presents in a mellow way (without one of those clear-cut occurrences of battery or extreme cruelty which I mention above) but it's also hazardous to demonstrate.
       
   2. You can secure a psych evaluation by a licensed mental health practitioner (can be a psychiatrist, a social worker, a psychologist, etc) that determines:
      1. you have a mental injury (meaning, a formal diagnosis such as PTSD, depression, anxiety, panic, phobia, personality disorder, etc), AND
      2. this diagnosis appears to be a direct consequence of the abuse

Note that USCIS seems to heavily rely on state family case law, so if something qualifies as abuse for divorce purposes, and if you can prove it, it is likely that you have a decent case for USCIS.

I suggest you look PDF publications of the NIWAP (National Immigrant Women Advocacy Project), they've been extremely helpful to me in getting a better understanding of what may or may not count.

 

Qualifying criminal activity for the purpose of other stuff such as the U visa (hostage, slavery, torture, blackmail, etc) does usually qualify as either battery or extreme cruelty afaik.

 

Finally, as far as proof goes, just like with bona fides there is the soft evidence (photos, audios if you're in a one-party consent state, etc), the hard evidence (acknowledgement by third parties of there having been abuse: police reports, criminal cases, orders of protection, medical reports describing injuries, abuse-based divorce decree, psych evaluation etc), and the statement and cover letter.

Most appeals I could find online on VAWA cases featured a denial for two most recurring reasons:

• Spouse was mean, we're sorry you're traumatized, but these acts don't amount to our definitions of battery/extreme cruelty
• Lack of probative details (location, date, time, what discussion led to the incident, what was the social dynamic in the preceding days or weeks that led to this situation, what factors such as addiction or mental illness make that claim to this abusive behavior be more likely to be truthful).

 

So the problem in your case is how you go about proving that your injuries are not self-inflicted for immigration purposes in the absence of police reports.

If you have a lot of pieces of evidence of a variety of types (photos, med/psych docs, audio transcripts, testimonies from credible witnesses, etc) on several occurrences, it becomes much more likely truthful to an immigration officer that at least one of the claims is true, and with enough details of probative value, they can turn around their chair and argue to their direct supervisor that this case qualify because there's this event with these details that are clear enough to check the box.

If all your evidence is first-party, you will have a serious burden of credibility to overcome.

Some people are approved with just their statement and with little to no corroborating evidence, and USCIS insists on not providing much of a list of qualifying events or qualifying evidence because they want to encourage everybody who underwent domestic abuse to show it to them. it's not a lost cause. The standard is "any credible evidence".

However, you do need to be mindful of the fact that the more third-party evidence you have, from professionals who are qualified to leave a paper trail that says "this person did experience domestic abuse" that USCIS officers can readily show to their boss during their daily/weekly/monthly performance reviews, the easier your case gets.

 

DO NOT use anything audio or video if it was recorded in a State that requires the consent of all parties involved, or you will likely get referred by USCIS for a felony charge.

If you do live in a one-party consent State, please note that USCIS doesn't do multimedia, so you will likely have to either transform your video into some kind of picture album and/or just use the audio track and put it in some transcription software (I used www.notta.ai, it's a Japanese platform for audio transcription, and yes they do English) to just provide a PDF transcript.

 

 

My advice:

 

• Check with organizations that provide services to victims of domestic violence what your rights are.
  Even if you don't get for them to represent you, if at least you can get for them to look at your evidence and statement you will get a better sense of how solid your case is whether it be for housing, for immigration, etc.
   
• Collect as much evidence as you can before you move out. Take pictures, scan all documents that you have the right to scan. And also, consider not moving out.
  If you press charges and get an order of protection, and as long as you can keep paying the rent, you will be able to keep living in the house and your abuser will be the one moving out.
  I don't know where you live but in NYC, many precincts have a DV officer and you can show up and request to speak with a DV officer and they will provide you some guidance on what your options are and on whether you have enough evidence for your abuser to be arrested and charged.
   
• Start going to Al-Anon meetings, preferably in-person if you can (but don't attend online meetings while your abuser is nearby).
  Go several times per week if you can. It's not a "once-per-month" thing.
  And keep attending even after you separate. Go to at least maybe 10 meetings within a month or so.

 

 

I promise you, things do get better.

Thank you so much for this detailed response. It’s been so stressful the last couple of days and I keep doubting my choices. Fortunately my spouse has been calmer and agreed to an uncontested divorce. I hope this is the fresh start of my new life. 

[A1987WA 11]

On 11/3/2024 at 6:28 PM, Biubiubiu said:

Hi everyone very new here and learned a lot! 
 

I got married in July 2020 and got conditional gc in October 2021. Last July filed i751 jointly with USC spouse. There has been physical abuse during the relationship, I have photo, video evidence of my bruises (not too big bruises I’d say… but he did put his hands on me), threatening things he said to me, things he smashed around the house, and there was one time when I had a therapist session right after an incident. I never called the police and when he doesn’t drink we are on good terms. The most recent incident was in April this year. Now a few days ago he got angry again smashed things and is asking me to move out and preparing for a divorce. He is very angry at me and I’m afraid after talking to a lawyer he would want to delay the divorce to mess up my application. 
Do I have enough evidence for the battery waiver or should I not worry about converting to it now and work with him on the divorce as quick as possible? I’m trying to find lawyers too, thank you for any insights! 

For abuse waiver, You mostly need few documents at least (common): Police reports (events description), Medical papers/Discharge letters (injury description), Psychiatrist evaluation (if available), evidences of abuse and a demonstration with time line, one more thing may add value: Couple counseling records showing you tried to work things out. PLUS - You have to provide genuine intent of marriage too. So gather the evidences of PRE marriage that shows you guys were in love, evidences how the marriage happened. Then add cohabitation and good faith evidences like joint lease, bills, assets (home, car etc), joint LOANS, joint bank statements, pictures, 3-4 affidavits from friends and close family members describing your good marriage and how it ended up abusive relationship. You will be good to go. 

If he threatens you, take place in a shelter. You can add that powerful document but it has to be associated with proof of threats. I think all these together can end up in a decent case and you should be fine.