TSA Checking Immigration Status?

Our client was recently placed in removal proceedings or what is commonly understood as deportation proceedings before an Immigration Judge. One might ask how he got there given that he had no prior criminal history, was not picked up during a US Immigration and Customs Enforcement (ICE) worksite raid, nor was he randomly stopped while on a greyhound bus going out of state.  

His violations of the Immigration Laws of the United States of America was that he entered the U.S. more than ten years ago with a B2 visitor's visa and should have left the United States more than nine years ago when his I-94 expired.   

Our client lives in New York City and his girlfriend at the time, lived in Florida.  To maintain this long distance relationship, he was traveling back and forth from New York to Florida almost every month for more than six months, not on Greyhound nor Amtrak, but was flying on public passenger planes.  He flew inter-state for six months presenting nothing more to the Transportation Security Agents (TSA) than an international driving license: a non-government issued identification. 

Around November of 2010 while making his sixth trip to Florida using the same piece of I.D., he was stopped in Florida by TSA agents and asked once more for his I.D. He showed the agents his international driver’s license with confidence because by this time he felt that his I.D. was not a concern since he had routinely used it before without issue. Our client was about to learn that doing something repeatedly does not give it legitimacy.   Because our client could not show the TSA agents an official I.D., they directed him to ICE agents who asked him questions about his passport, (which he did not have in his possession), his citizenship, how he got into the United States etc., took his fingerprints, arrested him and placed him in detention in Florida for about a week.  He was eventually released and he came back to New York with a Notice to Appear before an Immigration Judge.

Fortunately for our client he was going to Florida to see his U.S. citizen girlfriend, whom he married after his release from ICE detention.  When we got to immigration court, we explained to the Judge that our client was now an immediate relative of a U.S. citizen, because he married a US Citizen, and that this should enable him to get a green card in the U.S.  The Immigration Judge asked him for his wife and fortunately for him she was present with him in the court. 

Because the marriage took place after my client was released by ICE, we were asked by a Department of Homeland Security (DHS) Attorney and the Judge to submit a Stokes Package to the court, which required both my client and his wife to submit an affidavit stating that they did not get married to circumvent the Immigration Laws of the United States.  This was exactly what we did and it is very likely that our client will be able to adjust status in the United States because he does not have a criminal record and his relationship with his wife is bona fide.

This entry is not written with the intention of dissuading undocumented individuals from traveling within the United States on public passenger planes but only to make persons aware of the potential risks that might be involved if they decide to do so.  If you have any comments or concerns on the matter please drop us a line.

Smith & Stephenson LLP resolves immigration concerns for individuals and businesses. We are a full-service Immigration Law Firm and represent clients in all areas of immigration law, including family based immigration and employment-based immigration. If you have immigration questions, we have answers. You can call our Law Offices 24/7 at (212) 400-7147. Our Immigration Law Firm is located in New York, New York. Our firm serves primarily clients from the Tri-state area, however, we offer telephone consultations and we can help clients all over the United States and throughout the world.

Facebook and USCIS

FB Status: Had a meeting with my boss today! Wink, wink…(I have no boss! I am my own boss…lol)

This facebook posting came from a client who obtained an H1-B visa months before. Since there is a requirement for an H-B visa recipient to have an employer/sponsor in order to obtain work authorization in the United States, this would be a red flag for an Immigration Officer who just happened to be browsing the internet. Of course, we all know that people tend to exaggerate or brag about their successes, personal details and daily activities on their posts, but it is very important to post what is accurate and not what is misleading because if these activities are contrary to claims made in immigration filings, the potential problems could be very significant.

In a May 2008 internal memo entitled, “Social Networking Sites and Their Importance to FDNS”, the United States Citizen and Immigration Services (USCIS) discussed the use of social networking sites by Fraud Detection and National Security (FDNS) officers in investigating potential abuses of U.S. immigration programs. The memo encouraged FDNS officers to monitor these sites and look for information related to petitioners, applicants, beneficiaries and others suspected of fraudulent immigration activities. (See http://www.eff.org/deeplinks/2010/10/applying-citizenship-u-s-citizenship-and )

Obtaining immigration benefits through fraud is wrong and The Law Offices of Smith and Stephenson LLP appreciates and understands the need for the USCIS to protect the integrity of the United States Immigration System. Social networking medias like facebook are being closely monitored and to this end it is of utmost importance that information posted is accurate and not misleading. Of course, this awareness should not only be applied in the immigration context, it is equally as important in the employment and personal spheres.

Smith & Stephenson LLP resolves immigration concerns for individuals and businesses. We are a full-service Immigration Law Firm and represent clients in all areas of immigration law, including family based immigration and employment-based immigration. If you have immigration questions, we have answers. You can call our Law Offices 24/7 at (212) 400-7147. Our Immigration Law Firm is located in New York, New York. Our firm serves primarily clients from the Tri-state area, however, we offer telephone consultations and we can help clients all over the United States and throughout the world.

Do You Qualify For An O-1 Visa?

O-1 Visa is a non-immigrant visa category for aliens of extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics. The O-1 visa is a great way for foreign artists and entertainers to bring their talents to the United States. This is an employment related visa that allows qualified aliens to live and work in the United States.

O-1 visas are valid for up to three (3) years. They may be extended in one-year increments for ongoing projects, and in some cases, the foreign national may be able to apply for lawful permanent residency.

Applicants for O-1 visas must demonstrate that they possess extraordinary ability in the arts, sciences, business, education, athletics, or the motion picture or television industry. The applicant must show that he has achieved international acclaim and has an extraordinary record of achievement. The applicant must demonstrate that he is coming to the United States to perform temporary services for an event or series of events. O-1 applicants may not self-petition.

Smith & Stephenson LLP resolves immigration concerns for individuals and businesses. We are a full-service Immigration Law Firm and represent clients in all areas of immigration law, including family based immigration and employment-based immigration. If you have immigration questions, we have answers. You can call our Law Offices 24/7 at (212) 400-7147. Our Immigration Law Firm is located in New York, New York. Our firm serves primarily clients from the Tri-state area, however, we offer telephone consultations and we can help clients all over the United States and throughout the world.

Secure Communities

Secure Communities, is administered by U.S. Immigration and Customs Enforcement (ICE), and provides ICE and other local agencies immigration history information on an individual who is booked into jail. During the booking process, the arrestees’ fingerprints are taken and checked for criminal history and now also for immigration records maintained by DHS. If the person’s fingerprints match those of a person in the DHS fingerprint system, ICE will be notified and the appropriate enforcement action will be taken.

Smith & Stephenson LLP resolves immigration concerns for individuals and businesses. We are a full-service Immigration Law Firm and represent clients in all areas of immigration law, including family based immigration and employment-based immigration. If you have immigration questions, we have answers. You can call our Law Offices 24/7 at (212) 400-7147. Our Immigration Law Firm is located in New York, New York. Our firm serves primarily clients from the Tri-state area, however, we offer telephone consultations and we can help clients all over the United States and throughout the world.

Unlawful Presence and I-601 Waiver

You are unlawfully present in the United States if you are a foreign national who has stayed in the U.S. after the expiration of your period of authorized stay or are present in the U.S. without being admitted or paroled.

If more than 180 days but less than a year of unlawful presence accrues, then the foreign national is inadmissible for three years (three year bar). Foreign nationals who are unlawfully present for one year or more are inadmissible for 10 years (10 year bar). Thus, if a foreign national has accrued unlawful presence in the United States, then they are deemed inadmissible and illegible to re-enter the U.S. for either the three year or 10 year bar from the date they leave the U.S.

There is a waiver available for the unlawful presence ground of inadmissibility. The waiver is however only available to foreign nationals with a U.S. citizen or lawful permanent resident (LPR) spouse or parent. Children are not deemed qualifying relatives for the waiver.

The first step in the waiver process is for the foreign national to attend an immigrant visa consular interview in their home country. Once the consular officer deems the foreign national is inadmissible and a waiver is available, the foreign national will then file the waiver (Form I-601, with the applicable filing fee) and establish there is extreme hardship to the U.S. citizen or LPR spouse or parent if the foreign national were not allowed to return to the United States. The waiver request is discretionary and extreme hardship is only one factor the officer will consider.

Certain individuals do not accrue unlawful presence and are not subject to the three or 10 year bar. For instance, foreign nationals under 18 years of age do not accrue unlawful presence.

Smith & Stephenson LLP resolves immigration concerns for individuals and businesses. We are a full-service Immigration Law Firm and represent clients in all areas of immigration law, including family based immigration and employment-based immigration. If you have immigration questions, we have answers. You can call our Law Offices 24/7 at (212) 400-7147. Our Immigration Law Firm is located in New York, New York. Our firm serves primarily clients from the Tri-state area, however, we offer telephone consultations and we can help clients all over the United States and throughout the world.

Voluntarily Relinquishing Green Card: Disadvantages

The list below is not exhaustive but things to consider before voluntarily relinquishing your green card:

1. If you relinquish your lawful permanent resident status but wish to regain it in the future you must qualify all over again for the status.

2. Abandonment of lawful permanent resident status is irrevocable.

3. After you give up green card and permanent residence status, you will have to apply for an appropriate visa to enter the U.S. again.

4.Your journey towards U.S. citizenship will come to an end after you give up green card.

5. You cannot sponsor your spouse and/or unmarried children for permanent status after giving up Green Card and any petition you filed for your family members before you give up green card will be deemed abandoned when you terminate your green card status.

6. After giving up green card, you will lose the right to apply for government-sponsored financial aid for education.

7. Your Green Card gives you the ability to work for any company located in any U.S. territory, regardless of job function, hours/week, etc. (except for certain companies that for national security reasons only hire U.S. citizens). With a Green Card there is no need for employer sponsorship.

8. Unlike permanent residence, if you come to the U.S. on a nonimmigrant visa, your spouse and children will lose their dependency status as soon as you lose yours (for instance, if you are in the U.S. on an H1B visa and your spouse and child(ren) are on H-4, then they will lose their status as soon as you are laid off from your H1B position). Note however, if you obtained a green card for your family, they will retain it even if you give up or lose your status.

9. If you are a Green Card holder, your spouse and minor unmarried children under 21 years of age can qualify for permanent residence as dependents, and once permanent residence is granted they are allowed to stay in the U.S. with the right to work and attend school, unlike many nonimmigrant visas. After giving up US green card, your spouse and children will have to obtain appropriate visas to study and work except in a few visa categories.

10. In many cases you cannot get a mortgage for home purchase if you are a nonimmigrant in the U.S. Many banks require green card or some other long-term visa before granting a mortgage.

11. Changes in immigration rules may hurt your chances of obtaining a nonimmigrant visa to the U.S. whereas you do not run the risk of losing your Green Card if there are changes in the immigration rules. You may lose your green card only when you violate the terms of your green card.

12. Green Card holders receive Social Security benefits when they retire, whereas a nonimmigrant visa holder does not.

Smith & Stephenson LLP resolves immigration concerns for individuals and businesses. We are a full-service Immigration Law Firm and represent clients in all areas of immigration law, including family based immigration and employment-based immigration. If you have immigration questions, we have answers. You can call our Law Offices 24/7 at (212) 400-7147. Our Immigration Law Firm is located in New York, New York. Our firm serves primarily clients from the Tri-state area, however, we offer telephone consultations and we can help clients all over the United States and throughout the world.

Caution: Do Not Lose Your Green Card

Lawful Permanent Residents (LPRs) or green card holders are urged and cautioned here to keep their trips abroad relatively short. The Department of Homeland Security (DHS) could determine that an LPR has abandoned their residence if the LPR’s intent was not to return to the United States within a relatively short period of time.

Generally, Lawful Permanent Residents can use their green cards to return to the United States after a temporary absence not exceeding one year. The most important factor in concluding whether an LPR abandoned his or her U.S. residence is to look at the LPR's actual intent to return to the United States after a short trip, along with the other factors such as property, business, and family ties inside the U.S. and in the foreign country.

An LPR returning to the U.S. once a year for a few days doesn't "automatically revalidate" a green card in a situation in which the lawful permanent resident has actually been residing abroad. If you spend most of your time outside of the U.S. you run the risk of having your Permanent Residence status terminated and green card cancelled by an Immigration Officer. This can of course be avoided by giving up your green card voluntarily. Despite the disavantages, because there are disadvantages, giving up your green card has the advantage of allowing you to apply again in the future if you so desire.

Smith & Stephenson LLP resolves immigration concerns for individuals and businesses. We are a full-service Immigration Law Firm and represent clients in all areas of immigration law, including family based immigration and employment-based immigration. If you have immigration questions, we have answers. You can call our Law Offices 24/7 at (212) 400-7147. Our Immigration Law Firm is located in New York, New York. Our firm serves primarily clients from the Tri-state area, however, we offer telephone consultations and we can help clients all over the United States and throughout the world.

The Obama Administration Has Extended TPS For Haitians

The Obama administration has extended temporary protected status for Haitians in the U.S. and this extension takes effect on July 23, 2011 and applies for an additional 18 months, through January 22, 2013. The extension not only applies to approximately 50,000 Haitian nationals living in the U.S. through TPS, but the policy has also been changed to allow eligible Haitians who have continuously resided in the United States since January 12, 2011, to receive the protections of the policy.

This is good news for our clients because as we all know, the effects of the earthquake was not limited to the day or days following the earthquake. Now was really not the time to risk the lives of so many Haitians through deportation. Kudos to the Obama Administration!

BELOW is the announcement from The Department of Homeland Security:

Secretary of Homeland Security Janet Napolitano today announced the re-designation of Haiti for Temporary Protected Status (TPS) and extended the country’s current TPS designation for 18 months—through Jan. 22, 2013.

Secretary Napolitano first announced that she was designating Haiti for TPS on Jan. 15, 2010, after major earthquakes devastated the country. Following consultations with other federal agencies, Secretary Napolitano has determined that current conditions in Haiti support extending the designation period for current TPS beneficiaries and re-designating Haiti for TPS in order to re-establish the continuous residence date as Jan. 12, 2011.

Under the 2010 designation, TPS applicants needed to show that they had continuously resided in the United States since Jan. 12, 2010. Under the new re-designation, eligible individuals who arrived up to one year after the earthquake in Haiti may now apply for TPS. Many of these individuals were authorized to enter the United States immediately after the earthquake on temporary visas, humanitarian parole and other measures.

Later this week, USCIS will post a Federal Register notice and provide additional guidance on:

• How to register or re-register for TPS;
• What individuals with pending TPS applications should do; and
• When to begin filing TPS applications.

Americans Suffering From Amnesia?

Speaking before the annual National Hispanic Prayer Breakfast in Washington, DC President Obama said that while it may be tempting to think of immigrants as different, Americans ought not have “amnesia” about how they got here.

“It can be tempting to think that those coming to America today are somehow different from us. And we need to not get - have amnesia about how we populated this country,” President Obama said. He went on further to quote a verse in the Book of Deuteronomy about loving and embracing the stranger, “What this verse reminds us to do is to look at that migrant farmer and see our own grandfather disembarking at Ellis Island or Angel Island in San Francisco Bay, and to look at that young mother newly arrived in this country and see our own grandmother leaving Italy or Ireland or Eastern Europe in search of something better.”

“I'll keep doing my part. I'll keep pushing and working with Congress. But the only way we are going to get this done is by building a widespread movement for reform. That's why I'm asking you to keep preaching and persuading your congregations and communities,” the president said to the audience.

He went on to say that comprehensive reform is not only an “economic imperative or a security imperative, it's also a moral imperative.”

It is obvious that the President is creating momentum on the immigration Debate outside of Washington DC, coming out of the major speech he gave earlier this week in El Paso Texas and now this! But is this Obama's attempt to get the Immigration Reform wheels in gear or just another ploy of getting the Hispanic votes with the elections just around the corner?

Smith & Stephenson LLP resolves immigration concerns for individuals and businesses. We are a full-service Immigration Law Firm and represent clients in all areas of immigration law, including family based immigration and employment-based immigration. If you have immigration questions, we have answers. You can call our Law Offices 24/7 at (212) 400-7147. Our Immigration Law Firm is located in New York, New York. Our firm serves primarily clients from the Tri-state area, however, we offer telephone consultations and we can help clients all over the United States and throughout the world.

Padilla v. Kentucky- Implications For Immigrants Accused of Crimes

In Padilla vs. Kentucky, the Supreme Court granted immigrants facing removal proceedings and detention, rights and protections that were much anticipated and welcomed by Immigration Lawyers across the United States. This new ruling now requires Defense Attorneys to properly advise their immigrant clients of the potential immigration consequences of pleading guilty to a crime.

Often-times, Permanent Residents (green card holders) initiate their own deportation proceedings when they engage in plea bargaining to secure a less serious punishment for a crime. As a result, thousands of individuals who were legal Permanent Residents, have been deported after such convictions.

Padilla vs. Kentucky means immigrants who enter plea agreements must be aware all of the consequences involved and therefore there is a requirement that Defense Attorneys know more than just criminal law. They now have to understand the dire immigration consequences of a crime.  Immigrants should know that their admissions to guilt can potentially cause separation from their family and/or remove them from the United States indefinitely.

It is common knowledge that all citizens, including immigrants, have a right to competent legal counsel. Padilla vs. Kentucky expands on the meaning of "competent legal counsel" because this case tells us that not getting the proper warnings means the accused did not get effective counsel.

On April 6th, 2011, The Third District Court of Appeals in Florida, held that generic warnings about the possibility of deportation are not sufficient to cure prejudice in a mandatory deportation case -- immigrants must be warned with specificity. The Court also held that Padilla cannot be applied retroactively in post-conviction proceedings (Hernandez v. Florida). Under this holding, it means that those who did not get "competent legal counsel" before Padilla will not have a remedy.

If you are an immigrant facing criminal charges it is a very good idea to hire both an Immigration Attorney and a Criminal Defense Attorney or at least have your Criminal Defense Attorney consult with an Immigration Attorney.

Smith & Stephenson LLP resolves immigration concerns for individuals and businesses. We are a full-service Immigration Law Firm and represent clients in all areas of immigration law, including family based petitions and employment based immigration. If you have immigration questions, we have answers. You can call our Law Offices 24/7 at (212) 400-7147. Our Immigration Law Firm is located in New York, New York. Our firm serves primarily clients from the Tri-state area, however, we offer telephone consultations and we can help clients all over the United States and throughout the world.

U Visa For Victims of Serious Crimes

Undocumented immigrants are vulnerable to abuse,exploitation and victimization because typically they are afraid of detection and subsequent deportation. Consequently, this fear prevents them from reporting that victimization to law enforcement agencies.

The U visa was created by Congress in October 2000 to help offer protection to victims of particular crimes and to assist law enforcement agencies investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other offenses.

The purpose of the U Visa is give victims of certain crimes temporary legal status and work eligibility in the United States for a period of up to 4 years. The U Visa is a nonimmigrant visa and only 10,000 U Visas may be issued every fiscal year. It should also be noted that family members may also be included on the petition.  Spouses, children, unmarried sisters and brothers under 18, mothers, fathers, as well as stepparents and adoptive parents are implicated here. An approved U Visa petition will automatically grant the applicant the permission to work in the United States.

As per United States Citizenship and Immigration Services (USCIS), there are four requirements for eligibility:

1. The individual must have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity.
2. He/she has information concerning that criminal activity.
3. He/she has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime.
4. The criminal activity must have violated the laws of the United States or occurred in the United States or in a United States territory.

A portion of the application must be certified by a Federal, State or local law enforcement agency, such as a prosecutor or a Federal or State judge in charge of the investigation in which the petitioner is the victim. Without this certification, the U Visa petition will be denied. If at any point the victim stops to cooperate with law enforcement, the certification can be withdrawn.

U visas can prove to be difficult cases and therefore it is of utmost importance to seek the assistance of an Immigration Attorney moving forward.

Smith & Stephenson LLP resolves immigration concerns for individuals and businesses. We are a full-service Immigration Law Firm and represent clients in all areas of immigration law, including family based immigration and employment-based immigration. If you have immigration questions, we have answers. You can call our Law Offices 24/7 at (212) 400-7147. Our Immigration Law Firm is located in New York, New York. Our firm serves primarily clients from the Tri-state area, however, we offer telephone consultations and we can help clients all over the United States and throughout the world.

Marriage Fraud

A greencard is easily and very commonly obtained by marriage fraud. There are a variety of ways that this practice can be done. You could ask a friend for a favor and get them to marry you, or maybe you can find an American citizen who needs cash and  is willing to engage in this fraudulent act in exchange for some cash.

Oftentimes individuals think it's a simple matter to obtain a greencard based on marriage but this is not the case. The Officials at the United States Citizenship and Immigration Services conduct thousands of interviews and are very experienced in determining the genuineness of a marriage. The likely result of commiting marriage fraud is that that you'll get caught and your immigration application will be denied.

It should be noted that marriage fraud is a specific ground for deportation and under the Immigration and Nationality Act, a fraudulent marriage finding may bar the approval of a subsequent immigrant visa petition. Futhermore, immigration waivers for marriage fraud are extremely limited.

The lesson here is that individuals should not engage in marriage fraud. U.S. Immigration and Customs Enforcement (ICE) agents investigate marriage fraud and prosecute U.S. citizens and foreign nationals for criminal violations.  Severe penalties for marriage fraud include sentences of up to 5 years in federal prison and a $250,000 fine.

Smith & Stephenson LLP resolves immigration concerns for individuals and businesses. We are a full-service Immigration Law Firm and represent clients in all areas of immigration law, including family based immigration and employment-based immigration. If you have immigration questions, we have answers. You can call our Law Offices 24/7 at (212) 400-7147. Our Immigration Law Firm is located in New York, New York. Our firm serves primarily clients from the Tri-state area, however, we offer telephone consultations and we can help clients all over the United States and throughout the world.

The Stokes (Fraud) Interview

The term Stokes refers to a Federal Court decision that forced the Immigration Service in New York to provide applicants a fair review in marriage cases. A Stokes Interview in a green card application based on marriage refers to an interview when the husband and wife are questioned separately, and their answers are compared by an Immigration Officer (IO). A Stokes Interview (also known as "marriage fraud interview") is usually a second interview. The goal is to determine whether the marriage was entered into in good faith and whether the marriage is bona fide or real.

When an individual applies for his or her spouse for United States Permanent Residence, there is a requirement to demonstrate to an United States Citizenship and Immigration Service (USCIS) Official that the marriage was entered in good faith, and not for the purpose of evading immigration law. As a result, couples are asked to provide sufficient documents and go through an interview at a USCIS office where they will answer questions about their marriage and life together. This first interview usually lasts about 1 -2 hours, and the questions are generally not intrusive.

However, if the IO conducting the first interview is not entirely satisfied and still has questions about the marriage, she will schedule a second interview known as the "Stokes Interview." During a Stokes Interview, the husband and wife are separated from each other and must answer a series of questions that are personal and sometimes invasive.

A Stokes Interview can last several hours, depending on the Immigration Officer and the complexity of the situation. It is important to stay calm and to answer all the questions truthfully. If you do not remember the answer to a question, it is best to say so. Since a Stokes Interview happens only after the IO already has some doubt about the genuineness of the marriage, one can expect a long and exhausting interview. The interview will be taped and the statements obtained will be compared against each other. If the answers match very well it is a good indication that the marital relationship is bonafide. If not, the couple will be called in together after their individual interviews and given a chance to explain the discrepancies.

Beyond the interview, the examiner should consider other evidence. Examples are joint tax returns, insurance policies, rent receipts and joint bank accounts. After obtaining the evidence and coupled with the interview, the Immigration Officer will make a determination as to the bonafides of the marriage and whether a greencard will be issued.

Your Attorney is allowed to accompany you to the interview, and his/her presence may help during the process especially if it is a rather complicated one. Since the Stokes Interview is critical in your greencard application, you will want to discuss with your Attorney the things you need to pay special attention to.

Smith & Stephenson LLP resolves immigration concerns for individuals and businesses. We are a full-service Immigration Law Firm and represent clients in all areas of immigration law, including family based immigration and employment-based immigration. If you have immigration questions, we have answers. You can call our Law Offices 24/7 at (212) 400-7147. Our Immigration Law Firm is located in New York, New York. Our firm serves primarily clients from the Tri-state area, however, we offer telephone consultations and we can help clients all over the United States and throughout the world.

Greencard for Abused/Battered Spouses and Minor Children

When an undocumented immigrant, meaning someone who doesn’t have a green card, marries a United States Citizen or a Lawful Resident of the United States, that undocumented individual generally has the expectation that their United States Citizen Spouse or their Lawful Resident Spouse will submit a petition on their behalf so that they too might obtain lawful resident status in the United States. 

But what if the United States Citizen Spouse or the Lawful Resident Spouse refuses to even start the filing process for his or her undocumented spouse, or has started the process but refuses to continue? 

What if the US Citizen Spouse or Lawful Resident spouse uses the fact that he or she has the power to file or not file for the undocumented spouse as some sort of bargaining chip to assert control over the undocumented spouse? 

What if the United States Citizen Spouse or Lawful Permanent resident spouse subjects his or her undocumented spouse to physical abuse or extreme cruelty simply because they know that the undocumented individual is so desperate to get their “papers” that they would stay in the marital relationship no matter how abusive it is and would not report it to the police simply because they want a green card?

It is this sort of situation that the Violence Against Women Act (VAWA), recognizes and seeks to address and prevent.  VAWA is the United States Government's way of saying, “we know that there are undocumented individuals, in particular women and children, who remain in abusive marital relationships hoping that their abusive spouse will file for them.”  The US Congress has therefore made it lawful for these abused spouses to file for themselves without the help of their US Citizen or Lawful Resident Spouse.  In submitting a self-petition under VAWA the undocumented spouse needs to establish five basic criteria:

     

1. That he or she was or is married to a United States Citizen or a Lawful Resident.
2. That the marriage was entered in good faith, meaning that it is bona fide
3. That he or she resided with the United States Citizen or Lawful Resident
4. That he or she was battered or subjected to extreme cruelty and
5. That he or she is a person of good moral character, meaning no major criminal convictions

If the abused spouse is divorced from her abusive US citizen or lawful resident spouse, then the abused spouse has two years from the time of the divorce to submit her self-petition under VAWA.  The abused undocumented individual should also bear in mind that he or she can also file for his/her minor children as derivatives when she submits her petition under VAWA. 

Are you this undocumented individual who can identify with this situation? If you are, there is help for you. Please drop us an e-mail, give us a call or use our blog to voice your opinions or concerns on the matter.

Smith & Stephenson LLP resolves immigration concerns for individuals and businesses. We are a full-service Immigration Law Firm and represent clients in all areas of immigration law, including family based immigration and employment-based immigration. If you have immigration questions, we have answers. You can call our Law Offices 24/7 at (212) 400-7147. Our Immigration Law Firm is located in New York, New York. Our firm serves primarily clients from the Tri-state area, however, we offer telephone consultations and we can help clients all over the United States and throughout the world.