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March 10, 2008: Is This An Abused Or Battered Spouse?

Is This An Abused Or Battered Spouse?

My adjustment of status (I-485) application is pending, but my husband is very abusive verbally. We have a 15 month old child together and he hardly ever sees her. He hardly comes home, he does whatever he wants, he’s very disrespectful, and he has multiple women. He’s moving to a different country, while I’m still here by myself with the baby. What can I do? I’m afraid if tell him it’s over then he will not go to the interview for my I-485.
— Anonymous

It sounds like you may be what the Immigration and Nationality Act (INA) categorizes as a “battered spouse” under the Violence Against Women Act (VAWA).

A battered or abused spouse or child of a U.S. citizen or lawful permanent resident is eligible to file a Self-petition using Form I-360, Petition Amerasian, Widow(er), or Special Immigrant, if otherwise qualified. If approved, the self-petitioner is eligible to adjust to lawful permanent resident status just as if the United States citizen spouse had filed a Form I-130 petition. As a Self-petitioner, you will have to prove the abusive spouse’s United States citizenship or permanent resident status, that you are currently married to the abusive United States citizen or permanent resident (or if divorced, that the self-petition is filed within 2 years from the date the divorce became final), that you currently (or in the past) resided with the abusive spouse, that you were battered or subjected to extreme cruelty during the marriage, you are person of good moral character, and that you married the abusive spouse in good faith because you were in love.

There is no specific formula for winning a VAWA self-petition. Though physical abuse is not necessary to have a VAWA self-petition approved, hardly coming home, doing what he wants, and being disrespectful, on its own and without more detail or supporting documentation, may not rise to the level of abuse contemplated by the VAWA statutes. The Vermont Service Center, which is where these VAWA self-petitions are filed and reviewed, looks to see if all of the abovementioned requirements are met by closely reviewing each supporting document that was submitted. For instance, just because a self-petitioner has (or does not have) an injunction against the abusive spouse does not necessarily mean that the case will be approved (or denied). In fact, the adjudicator will read every notarized statement, arrest report, etc. to look for consistencies (or inconsistencies) in the self-petitioner’s story. There are some instances where the abusive spouse may have destroyed evidence of the marriage such as picture albums and cards or the police were never called after a domestic violence disturbance. Even so, all of the VAWA requirements will have to be met or the VAWA self-petition will not be approved.

Before filing a VAWA self-petition, you should consult with an experienced immigration attorney to properly evaluate your case and explain to you all of the details that will be necessary to successfully file this type of petition.

Evan Shane and Michael Shane, Immigration Attorneys

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