Facts about Immigrating on a Marriage-Based Visa and Immigration-Related Options for Immigrant Victims of Domestic Violence and Other Crimes
How does the marriage-based immigration process work?
The marriage-based immigration process involves several steps to obtain legal immigration status in the United States, and over time, to be eligible for citizenship. These steps depend on the type of marriage-based visa you travel on to the United States, as well as other factors. The following information is an overview of some of these types of visas, as well as information on your legal rights.
K-1 nonimmigrant status (as the fiancé(e) of a United States citizen):
you are required to either marry the United States citizen who sponsored your visa within 90 days of entry or to depart the United States. Following your marriage to the U.S. citizen-sponsor, you must file an Application to Register Permanent Residence or Adjust Status (Form I-485). If your Form I-485 is approved, your status will be adjusted from a K nonimmigrant to that of a conditional permanent resident (a conditional “green card” holder). You will have that conditional status for two years. If you remain in the U.S. without marrying the U.S. citizen who sponsored your K-1 visa, or marry someone else, you will violate the terms of your visa, have no legal status, and may be subject to removal proceedings or other penalties.
K-3 nonimmigrant status (as the spouse of a United States citizen):
you are allowed to enter the United States temporarily while waiting for approval of a family-based visa petition (Form I-130). Once the Form I-130 is approved, you are entitled to lawful permanent residence (a “green card”) and will need to file an Application to Register Permanent Residence or Adjust Status (Form I-485).
All other marriage-based immigration status holders should refer to the information given to them from the U.S. consulate. Additional information may be found online at www.uscis.gov.
If I am married to a U.S. citizen who filed immigration papers on my behalf, what is my immigration status?
If you have been married less than 2 years when your Form I-485 is approved, you will receive a conditional permanent residence status or “green card” from USCIS. Ninety (90) days before the second anniversary of your conditional permanent residence, you and your spouse must apply together (Form I-751) to remove the conditions on your lawful permanent residence. To do so, you must prove the marriage is in “good faith” and valid.
AILA InfoNet Doc. No. 10102861. (Posted 10/28/10)
If you have been married more than 2 years when your Form I-485 is approved, you will receive lawful permanent residence status from USCIS. On that date you will no longer be dependent on your U.S. citizen spouse for immigration status.
There are three situations when the law allows conditional permanent residents to request a waiver of the requirement that you and your spouse file jointly to request removal of the conditions:
1. Your spouse died or the marriage was terminated due to divorce or annulment; OR The termination of your status and your removal from the U.S. would result in extreme hardship; OR 2. During the marriage you were battered or subjected to extreme cruelty by your U.S. citizen or lawful permanent resident spouse.
All three waivers are also filed on Form I-751 and require you to prove your marriage was in “good faith” and not fraudulent.
If I am a victim of domestic violence, sexual assault, or other crimes, what immigration options are available to me?
Depending on the circumstances, there are several ways that immigrants who become victims of domestic violence, sexual assault, and some other specific crimes may apply for legal immigration status for themselves and their child(ren). A victim’s application is confidential and no one, including an abuser, crime perpetrator, or family member, will be told that you applied.
Self-Petitions under the Violence Against Women Act (VAWA) (Form I-360):
◦For spouses and children of abusive U.S. citizen or lawful permanent residents who have subjected them to battery or extreme cruelty.
■Also available to parents of abusive U.S. citizen children (if children are over 21).
■ Allows the victim to apply for legal permanent residency without the help or knowledge of the abuser.
Battered Spouse Waivers under VAWA (Form I-751):
For a conditional permanent resident who has been subjected to battery or extreme cruelty by a U.S. citizen or lawful permanent resident spouse.
■ Allows the victim to remove the conditions on permanent residence without the help or knowledge of the abusive U.S. citizen or lawful permanent resident spouse.
Cancellation of Removal under VAWA (requested in immigration court):
For spouses and children of abusive U.S. citizens who have subjected them to battery or extreme cruelty and who are in removal proceedings before an immigration judge.
◦ Also available to the parent of a child or step-child who is abused by a U.S. citizen.
◦ Among other requirements, victim must have been in the United States for longer than 3 years, and show that removal will cause the victim extreme hardship.
◦ Allows the victim to request that the immigration judge cancel the removal proceedings and grant the victim lawful permanent residency.
AILA InfoNet Doc. No. 10102861. (Posted 10/28/10)
U-nonimmigrant status (crime victims) (Form I-918)
For victims of certain serious crimes, including domestic violence, who have suffered substantial mental or physical abuse as a result of criminal activity in the
United States.
Requires victims to cooperate in the criminal investigation or prosecution.
◦ Allows victims to receive a “U visa,” and, after 3 years, if they can prove humanitarian need, public interest, or family unity reasons, to apply for lawful permanent residency.
◦ T-nonimmigrant status (victims of human trafficking) (Form I-914)
◦ For victims who have been subjected to severe forms of sex or labor trafficking.
◦ Requires victims to cooperate in the criminal investigation or prosecution. Allows victims to receive a “T visa,” and, after 3 years, to apply for lawful
permanent residency.
◦ These immigration options each have further specific requirements that must be established.
Please do not hesitate to contact our Firm to discuss your options moving forward.
