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Abused alien spouse

J.G. Azarcon, ESQ.
By J.G. Azarcon, Esq.

An alien who is a beneficiary of a permanent resident petition filed by a U.S. citizen spouse within two years after the marriage is granted conditional permanent resident status valid for two years.

Before the second anniversary date of the issuance of the conditional residence, the US citizen and the alien spouse need to file a joint petition to remove the conditional residence and convert the status to full permanent residence. If the US citizen spouse refuses to sign the joint petition, the alien spouse may not obtain full permanent residence unless the USCIS waives the requirement under limited circumstances.

There are three grounds for the waiver of the joint petition: extreme hardship, good faith marriage and battered spouse or child.

The extreme hardship ground requires the alien to show that he/she or his dependent child would suffer extreme hardship if they were not allowed to remain in the U.S. Family separation and economic reasons alone would not constitute sufficient justifications.  Termination of marriage is not material.

The good faith ground requires a showing that the alien entered into the marriage in good faith at the inception of the marriage. The USCIS will look into the duration of the marriage after the alien has obtained the conditional status,  intermingling of income, acquisition of joint assets and birth of children. This ground requires that the marriage has ended either through divorce or annulment, or at least initiated in the appropriate court by either spouse.

The third ground is based on spousal or child battery. The waiver petition can be filed by the alien even if the alien is still living with the petitioning spouse. Divorce or separation is not required. The alien spouse must establish that he/she or the dependent child of the alien was subjected to extreme physical or mental cruelty by the US citizen or permanent resident spouse or parent. Acts of violence deemed acceptable grounds for waiver include forceful detention, psychological or sexual abuse or exploitation, rape, molestation, incest and force prostitution. Even if the abused dependent child has a valid status, the alien conditional resident can still apply for a waiver.

If the abused alien however has not been petitioned by his/her US citizen or permanent resident spouse, he/she can file an independent immigrant visa petition on the ground of battery and extreme cruelty to the alien or the alien’s dependent child. Spousal abuse is a defense in removal proceedings, provided that the alien can establish a good faith marriage, at least three years physical presence in the US prior to the application for relief, demonstrate, extreme hardship if forced to leave and good moral character.

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