The divorce or separation occurred before the green card interview

The general rule regarding the filing of divorce and separation before the green card interview is that the alien spouse will not be able to receive legal permanent residence status because the qualifying relationship--the marriage--is no longer intact.  Below are the options for those who filed for divorce or legal separation before the alien spouse had the green card interview:

Remarriage to U.S. Citizen

Getting married to another U.S. citizen will allow the alien spouse to restart the adjustment of status petition with USCIS.  However, if the remarriage takes place immediately after final divorce, USCIS may suspect that the alien spouse is getting remarried for purposes of receiving a green card.  The alien spouse beneficiary has a higher burden of showing that the remarrying another U.S. citizen is not for the purpose of getting a green card.  After remarriage, the alien spouse must file a brad new I-130 based on the new marriage.

VAWA - Violence Against Women Act - Green Card for Domestic Violence Victims 

 Immigration under Violence Against Women Act (VAWA) provides immigration status to abused spouse and child of a U.S. citizen or lawful permanent resident.

Under the U.S. immigration law, most of the immigrants obtain green card

  • by marrying a U.S. citizen or a green card holder (see green card through marriage);
  • by investing money in business (see green card through investment);
  • through diversity immigrant visa program (see green card lottery);
  • through the sponsorship of a close family member who is a permanent resident or a U.S. citizen (see green card through relatives);

If the petitioning relative dies or if there is any break down in marriage or there is any abuse involved, don’t be panic. There is an option to obtain a green card under the above mentioned situation. ie: Green card through VAWA (or Immigration through VAWA).

Violence Against Women Act:

VAWA - an act passed by the U.S. Congress in 1994 - provides immigration status to abused spouse and child of a U.S. citizen or lawful permanent resident. To be more precise, through VAWA, any women marrying or dating a male U.S. citizen is eligible to attain a green card immediately by claiming spousal abuse.

Benefits of VAWA:

  • Allows the abused child/spouse to remain in the United States and obtain a green card, thereby permitting them to legally live in America;
  • Permits the abused child to receive some public benefits;
  • Provides employment authorization to the self-petitioner and their derivative children.

Who is eligible for green card under VAWA?

In order to qualify for green card under VAWA, you must be under one of the following categories.

  • Spouse: A battered spouse married to a lawful permanent resident or a U.S. citizen may file self-petition for a green card through VAWA. The unmarried children of the petitioner who are under the age of 21 can also be included on your petition as derivative beneficiaries. The petitioner must be legally married to the U.S. citizen or lawful permanent resident batterer and the self-petition may be filed if the marriage was terminated by the abusive spouse’s death or divorce within the two years prior to filing.
  • Parent: Parent of a child who has been abused by a U.S. citizen or permanent resident spouse can file self-petition for green card status.
  • Child: Children who were victims of abuse by their U.S. citizen or lawful permanent resident parent may file self-petition to qualify for green card status. The child should be under the age of 21 years. While filing the petition, the child should submit relevant credible evidence proving the relationship with the parent. Also, the child should qualify as the child of the abuser as the “child” is defined in the INA for immigration purposes.

For more information regarding the eligibility criteria, call us at (918) 258-6092

Getting Immigration through VAWA:

You must file USCIS Form I-360 (Petition for Amerasian, Widow(er), or Special Immigrant) to qualify for immigration through Violence Against Women Act. Along with the form, you have to submit all the supporting documentation. The petition should be filed with the Vermont Service Center and should be sent by certified return receipt mail. For filing self-petition, some amount of fees is also charged. While filing the petition, a copy of the form and the supporting documents should be kept with you. A notification of receipt will be sent to you within a few weeks after mailing the application and fee to the USCIS. If your application is denied, a denial letter will be sent to you. The denial letter will tell you how to appeal for the denial of form.

U Visa for victims of crimes who cooperated with law enforcement

What is a U Visa?

The U visa was created by the Victims of Trafficking and Violence Prevention Act, enacted in October 2000. It is available to noncitizens who 1) have suffered substantial physical or mental abuse resulting from a wide range of criminal activity, and 2) have been helpful, are being helpful or are likely to be helpful with the investigation or prosecution of the crime. The U visa provides eligible immigrants with authorized stay in the United States and employment authorization.

► Are U Visas Available?

Not exactly. U visas cannot be issued until the Department of Homeland Security (DHS) issues regulations making them available. Until then, no one is receiving an actual U visa. However, in the meantime, the DHS has made an interim form of relief available. It is referred to as "U nonimmigrant status interim relief" or "U visa interim relief." Eligible individuals who request U visa interim relief can receive deferred action, which would also allow them to obtain employment authorization.

► Who Is Eligible For U Visa Interim Relief?

There are four basic eligibility requirements for U visa interim relief:

  • The immigrant has suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity;
  • The immigrant possesses information concerning that criminal activity;
  • The immigrant has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution the criminal activity; and
  • The criminal activity described violated the laws of the United States or occurred in the United States.

► Who Is NOT Eligible For U Visa Interim Relief?

Currently, the guidance from DHS states that the Vermont Service Center (VSC) cannot grant interim relief to noncitizens in immigration proceedings. The guidance also suggests that noncitizens with "aggravated felonies," as defined in immigration law, also are not eligible, nor are "absconders" (noncitizens with a final removal order.) Also, if a noncitizen is currently in a valid non-immigrant status, she is not eligible for deferred action unless she relinquishes her existing status.

► What Criminal Activities Are Covered By the U Visa Interim Relief?

In order to qualify for U Visa interim relief, the immigrant must be the victim of one or more of the following crimes or any similar activity in violation of Federal State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.

► What Kind of Documents Should Be Submitted With A U Visa Interim Relief Request?

As there is no official "form" for requesting U Visa interim relief, each U visa interim relief application will look different and must be tailored to each individual case. However, each application should include the following elements (* = mandatory):

NOTE: ALWAYS KEEP A COPY FOR YOUR FILE.

● Cover letter*

Every application should include a cover letter summarizing everything included in the application. The cover letter should act as a road map to the entire application.

● Applicant’s Declaration*

Declarations should be detailed, describing the abuse and how the applicant meets each U visa requirement. IT DOES NOT NEED TO BE NOTARIZED.

● Personal Information*

The application should include some form of personal identification (such as translated copy of a birth certificate, an I-94 etc.)

● Documentation Regarding Criminal Activity*

  • U Visa Certification Form
  • Police report of crime
  • Copy of the crime as stated in applicable penal code.
  • Restraining Order and related declarations used to obtain the restraining order.

● Documentation of Substantial Physical and/or Mental Abuse*

  • Detailed in the applicant’s declaration*
  • Declarations of witnesses to abuse
  • Declarations of police, health care workers etc.
  • Medical reports documenting the effects of physical or mental abuse to applicant
  • Reports or evidence of appointment with counselors, shelters etc.
  • Photographs that document the abuse

► What is a Law Enforcement Certification?

The law enforcement certification is essential to the U visa application. It is best to obtain the certification during the investigation or prosecution of the criminal activity while the evidence is fresh. The certification must come from a Federal, State, or local law enforcement official, prosecutor, judge investigating or prosecuting the criminal activity. There is no official certification form. The certification, which may come in the form of a letter or other form created by the applicant’s representative, must be signed by the law enforcement official within the past six months and include the following information:

● it must state that the immigrant was a victim of one or more crimes protected under U visa;

● it must identify the crime(s); and

● it must verify the victim is, has been, or is likely to be helpful to the prosecution or investigation of the criminal activity.

► Where Do I Send My Request for U visa Interim Relief?

Requests for U visa interim relief should be sent to:

U.S. C.I.S. Vermont Service Center
VAWA Unit, Box 1000
75 Lower Welden Street
St. Albans, VT 05479-0001

All Requests Should Be Clearly Marked In Large Letters: DO NOT OPEN IN THE MAILROOM.

► What Form Do I Use To File A U Visa Interim Relief Request?

There is no official form to apply for U visa interim relief. For a summary of what a U visa interim relief application should include, please see the section above entitled, What Kind of Documents Should Be Submitted With A U Visa Interim Relief Request?

► Is There A Filing Fee For Requesting U Visa Interim Relief?

No. A filing fee has not been assigned to the U visa interim relief request.

► Can I Qualify For U Visa Interim Relief If I Was A Victim Of A Past Crime?

Yes. Victims of past crimes are still eligible for U visa interim relief, assuming that the applicant meets the U visa requirements.

► Will I Be Eligible For a Work Permit/Employment Authorization If I Am Approved for U Visa Interim Relief?

Yes. If a U visa interim relief request is approved and deferred action is granted, the applicant will be notified that s/he may submit an I-765, Application for Employment Authorization. The I-765 should be filed with VSC with proof that the applicant has an economic need for employment. The applicant will be required to renew the employment authorization each year. An I-765 may be filed concurrently with the request for U visa interim relief. An applicant must submit the appropriate filing fee with the I-765, unless an appropriate request for a fee waiver accompanies the application.

► Will U Visa Interim Relief Make Me Eligible For Lawful Permanent Residency Status (a Green Card)?

Not yet, possibly in the future. The U visa interim relief is not an actual U visa, it is only interim relief until the U visa regulations are written and U visas are issued. Therefore, a U visa interim relief holder is not eligible to apply for lawful permanent residency/green card.

Once the regulations are written and actual U visas are issued, a U visa holder may become eligible for lawful permanent residence. After three years, a U visa holder may apply for lawful permanent residence, if s/he has maintained continuous residence in the U.S. for at least three years, and if it is determined that his/her continued presence in the U.S. is justified on humanitarian grounds, ensures family unity, or is otherwise in the public interest. The adjustment application will be denied if it is determined that the U visa holder unreasonably refused to assist with a criminal investigation or prosecution.

The divorce or separation occurred after the green card interview

If the alien spouse has been granted a conditional green card (for 2 years), and the marriage deterioriated before the condition on the green card can be removed, the alien spouse may still remove the condition without the help of the U.S. citizen spouse.  The alien spouse must prove that the marriage was real from the beginning by producing joint documents from the time the marriage was entered into: (birth certificate of children, bank accounts and joint credit card accounts showing shared financial life, joint tax filing, lease agreement showing joint residence, etc.)