Nai-publish Pebrero 6, 2016
In the world of U.S. immigration batas, ang battered asawa o asawa, at kung minsan bata, maaaring karapat-dapat para sa espesyal na mga benepisyo ng imigrasyon, kabilang ang permanent resident status - at ang lahat na walang ang kooperasyon ng mga mapang-abuso U.S. mamamayan o residente petitioning kamag-anak. Sa katunayan, foreign nationals who marry U.S. citizens or residents are often vulnerable to the whims, cruelty and even brutality of their U.S. asawa, and accordingly, Kongreso pagsasabatas ng mga iba't-ibang ng mga batas na naglalayong sa pagprotekta mga dayuhan. The legal options to achieve resident status in such circumstances include:
I-360, Battered petisyon ng Asawa Sarili (para sa mga hindi pa na ibinigay ng isang kulay berdeng card): No matter the legal status of the foreign national in question – whether they overstayed their visa, o ipinasok nang walang visa sa unang lugar, the I-360 Battered Spouse Self Petition is often a viable avenue for a battered spouse to obtain U.S permanent residence, o katayuang "green card" – at muli, without the assistance or support of their abusive U.S. asawa. Those filing battered spouse “self-petitions” must establish their “good moral character” and present one or more of the following types of supporting documents: 1) detailed affidavits – including their own, as well as witnesses, to the abuse or the aftermath of the abuse suffered by the foreign national, 2) hospital records, 3) police reports, 4) domestic violence related orders of protection, 5) documentation reflecting mental health services or housing sought, such as counseling or shelter assistance 6) photographs capturing any physical injuries and 7) statements from clergyman.
Once their I-360 Battered Spouse Self Petition is approved, the foreign national has a clear, legal basis upon which to proceed with an I-485, Application to Adjust Status to Permanent Resident and be issued a green card.
I-751, Pagwawaksi ng Pinagsamang petisyon Alisin ang kondisyon Batayan sa Permanenteng Residence (para sa mga ibinigay lamang ng isang 2 taon, kondisyon berdeng card): When a foreign national is initially approved for resident (green card) status based on marriage to a U.S. mamamayan, it is typically on a conditional basis and a 2 taon. By the time this 2 year period ends, the underlying marriage is hopefully intact and the parties are able to file a “Joint” I-751 petition to remove conditional basis on permanent residence. Such a filing must be supported with documentation confirming the parties cohabitation at time of filing and for the 2 year conditional resident period.
Gayunman, if the marriage at issue falls apart, including when the foreign national becomes the victim of the U.S. pisikal o matinding asawa ng kaisipan na pang-aabuso, isang pagsusuko, o isang excusing, ng magkasanib na petisyon, Available ang. Sa ganoong kaso, the cooperation of the abusive U.S. spouse becomes unnecessary, and accordingly, only the foreign national’s signature is required. An I-751 waiver petition will be approved when the foreign national is able to document one of the following: isang) that the marriage at issue has been dissolved and that the underlying relationship was genuine and not entered into solely for the purpose of facilitating immigration benefits, b) that the denial of the waiver filing would cause the applicant and their family to experience extreme hardship, OR c) the applicant is the victim of their U.S. spouse’s physical abuse and/or extreme mental cruelty.
Supporting documentation that should be included with such filings, assuming available, include any paperwork detailing that the couple shared a residence for any period (the longer the better). Halimbawa, joint bank account statements, buwis babalik, seguro mga tala, credit account pahayag, photos or other documentation reflecting that the couple shared a residence. For waiver filings premised upon their spouse’s physical or mental abuse – similar to the self-petition discussed above – it is essential that the applicant include their own detailed statement, and if possible, those of witnesses as well as a psychologist or counselor, all confirming that the marriage at issue was sincere and detailing the nature of the abuse inflicted. These affidavits become all the more important when other evidence of a shared household and residence is not available – as is quite common when we are dealing with a turbulent, abusive relationship.
Pagkansela ng Pag-alis para sa Battered asawa: Kung ang isang U.S. citizen spouse withdraws their visa petition filing on behalf of their abused foreign spouse while the foreign national’s application for permanent residence remains pending, the application will likely end up being denied, and sometimes the foreign national will even find themselves defending removal proceedings before an immigration judge. At that juncture, the foreign national may very well have the option of applying for Cancellation of Removal as a Battered Spouse before the Immigration Court. The decision on such an application rests on the Immigration Judge, and if it is approved, this application will lead to the foreign national being issued permanent resident status.
The requirements associated with this type of application are similar or identical to those at play in the I-360 Battered Spouse Self Petition context, although applicants for Battered Spouse Cancellation of Removal must also document that they have been physically present in the U.S. para sa tatlong taon na humahantong sa kanilang application AT na ang kanilang pag-alis mula sa US. ay magdudulot sa kanila, kanilang anak, o ng kanilang mga magulang, “extreme hardship.” Notably, applicants for battered spouse cancellation of removal are eligible to receive an Employment Authorization Document while awaiting a final court date on their application, a wait that can be as long as 3 or more years.
U lahat: Victims of domestic violence crimes may be qualified for U visa status, an immigration status which leads to the issuance of an Employment Authorization Document (with a four year validity). Pagkatapos 3 years in U visa status, a foreign national becomes eligible to apply to adjust their status to that of permanent residence ("Green card"). Upang maging karapat-dapat, the applicant must be able to document: A) they suffered substantial physical or mental abuse as a victim of certain “qualifying criminal activity” – including a domestic violence related crime, B) they possess reliable information regarding the criminal act, C) they are ready, willing and able to assist law enforcement in the investigation or prosecution of the criminal act AND D) the crime was carried out in the U.S. o US. territory/possession or violated qualifying U.S. federal laws.
Unquestionably, achieving success in any of the above filing contexts, involves a challenging process. To rise to the challenge and to approach the process with a clear headed, practical strategy, it is essential that the foreign national be fully informed of their legal options and which of those options are best suited to their individual circumstances.
Publish Pebrero 6, 2016- "Immigration BATAS forum" Copyright © 2016, Sa pamamagitan ng Opisina ng Batas ng Richard Hanus, Tsikago, Illinois
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