Martha, a live-in caregiver, and her 14-year-old son Joshua, have approved spouse and (step)child petitions from her legal permanent resident (LPR) spouse Gerry, since December 2010. At the time they married in December 2009, Martha and Joshua have been out of status, as their tourist stays had expired in December 2008.
Martha and Joshua cannot file their adjustment/green card application since their priority date (for LPR spouse and LPR child) is not current. Since they got married, Martha has always given her wages to her husband. She comes home only for two days when she is off from work and her husband brings and picks her up from the care home every week because she does not drive.
When she is home, Martha does house chores because Gerry says that’s the only time she can perform her “wifely” duties– cleaning the apartment, doing laundry, cooking food for her husband and Joshua for the next five days that she is at the care home working. Her husband buys all their groceries and their personal necessities and every few months, some clothes for her and Joshua. They rarely go out because her husband says their income is not enough to pay for their rent, bills, Joshua’s school expenses and the monthly payments on “her” new car, which he drives. Gerry never gives Martha and Joshua money because he says Martha does not spend anything at the care home and Joshua walks to school. Joshua has told Martha that Gerry slaps and shoves him every time Gerry gets upset with him – for forgetting to throw the trash; not washing the dishes immediately and one time, for breaking a plate.
Sarah arrived on a fiancée visa in March 2011 and married her fiancé Leon in June 2011. Within two months from her arrival, she and Leon had their first argument and he slapped her. He cried and apologized, promising not to do it again, and she forgave him. As it turns out, Sarah and Leon have almost weekly screaming and trashing bouts that their apartment manager warned them they will have to move out if another tenant complains about them. Then on July 4th, they had another fight where Leon pulled Sarah’s hair and punched her thighs several times. Their neighbor called 911 and the police came and arrested Leon and filed a police incident report taking pictures of Sarah’s already swollen thighs. When Leon returned after 2 days, he threatened Sarah that if he is ever taken away by the police again, he will not file the spouse petition for her so she can be deported.
Both Martha and Sarah can file self-petitions as battered spouses under the Violence Against Women Act (VAWA). Moreover, under VAWA, Martha can also file as the parent of a battered child, Joshua. VAWA applies equally to women and men, and allows certain spouses, children and parents of US citizens and permanent residents (green card holders) to file a petition for themselves without the abuser’s knowledge, and afford the battered spouse, child or parent safety and independence from the abuser. USCIS will not notify the abuser when a VAWA petition is filed.
If you are filing as a spouse, you will have to show that you were the abused spouse of a US Citizen or Permanent Resident; prove that you entered into a good faith marriage; and that you are of good moral character. If you are filing as a parent, you will have to show that you are the parent of a child who has been abused by your US Citizen or Permanent Resident spouse. You may also file if you are the parent of a US Citizen, and you have been abused by your own US Citizen son or daughter. If you are filing as a child, you may file if you are an abused child under 21, unmarried, and have been abused by your US Citizen or Permanent Resident parent or stepparent.
VAWA recognizes all forms of abuse, not just physical abuse. Victims of economic, emotional and psychological abuse have recourse under the VAWA even if there is no physical abuse by the spouse. The abuse can be shown through control over and lack of access to the family income, or limiting a spouse’s outside involvement – who s/he sees, talks to, what s/he does; or treating the spouse as a servant; or making all the decisions in the household -- as in Martha’s case. Abuse can also be shown where the abusive spouse is involved in insulting, demeaning or “putting down” the other spouse, or making him/her feel guilty. There is also abuse where there is coercion, intimidation, or threats, like Sarah’s case.
If you or anyone you know is in an abusive relationship and you have not started or completed your immigration applications, consult an immigration attorney for a VAWA petition. Also, if you suffer from physical abuse, seek immediate help by calling 911 or the National Domestic Violence Hotline at 1-800-799-7233 or 1-800-787-3224 (TDD). The hotline has information about shelters, mental health care, legal advice and other types of assistance.
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Atty. Aurora Vega is a partner in The Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding its regular free legal clinic at the Max’s Restaurant in Vallejo, California on September 27, 2010. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
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