November 22, 2010- USCIS released a fact sheet providing details on the legal rights available to immigrant victims of domestic violence in the United States. Due to the lack of understanding of the U.S. law and language barrier, immigrants usually end up staying in an abusive relationships instead of reporting it. Immigrants should know that regardless of immigration or citizenship status, domestic violence victims have the right to obtain a protection order for themselves as well as for their children. They also have the right to legal separation or divorce without the consent of their spouse. Domestic violence is defined as repeated threats or abuses by one intimate partner or spouse to their other partner. This sort of behavior can include physical harm, forced sexual relations, psychological and emotional abuse, child abuse and other violent crimes.

USCIS also released information on the marriage-based immigration process and the International Marriage Broker Regulation Act (IMBRA). The marriage-based immigration process was changed by the IMBRA of 2005 with the purpose of helping foreign fiances or spouses. Under this law, the U.S. Government must provide foreign fiances and spouses immigrating to the U.S. with information about their legal rights and about their U.S.citizen partner’s criminal or domestic violence histories.

 [Review the USCIS Fact Sheets on Domestic Violence and IMBRA]

November 2010 - The 9^th Circuit Court of appeals has ruled that a K-1 Fiancé visa holder who fails to marry the sponsoring fiancé but marries another United States citizen may not obtain adjustment of status green card. K-1 Fiancé visa holders are required to marry the sponsoring U.S. citizen fiancé within 90 days of entering the United States in the K-1 Fiancé visa status. After the marriage, the alien fiancé may then apply for a green card through the adjustment of status process.

In this case, an alien who was sponsored for a K-1 Fiancé visa entered the United States. Instead of marrying the sponsoring fiancé, she met another U.S. citizen who ends up marrying and filing for a green card on her behalf. The green card adjustment of status application was initially approved. However, upon discovering that the alien’s green card sponsor was different from the K-1 visa sponsor, the USCIS revoked the conditional resident green card status. The alien appealed the decision, maintaining that she should be permitted to retain the green card. This court of appeals ruled that she could not retain the green card which had been issued in error because she did not marry within 90 days and also failed to marry the sponsoring fiancé as required by law. The ruling concluded that the alien be deported or be subject to removal from the United States.

 [Read Decision on Green Card Application for Fiancé Who Marries Non-sponsoring US Citizen].

A waiver of grounds of inadmissibility (I-601) was granted by the USCIS to a native and citizen applicant of Mexico. The applicant was found to be inadmissible to the U.S. for having remained unlawfully in the country for over year. As part of the application for the waiver, the applicant had to demonstrate that her departure would cause her U.S. citizen spouse to experience extreme hardship whether he left with her or remained in the U.S. without her.

The District Director of Chicago initially denied the waiver on grounds that there was not enough evidence to support extreme hardship. On appeal, counsel for the applicant stated otherwise. The Administrative Appeal Office (AAO) found extreme hardship would result to her husband if she was not permitted to remain in the U.S. The 1-601 waiver decision below provides the details on what factors that the AAO considered relevant in granting the waiver.

[Review the 1-601 Waiver Granted for Alien]

Key Points of Document:

•  The applicant is a native and citizen of Mexico.
•  She is married to a U.S. citizen.
•  The waiver application was denied by the District Director of Chicago.
•  She was found to be inadmissible to the U.S. for having been unlawfully present in the United States for more than a year.
•  Applicant seeks a waiver of inadmissibility in order to reside in the U.S. with her spouse, child and stepchildren.
•  District Director found that the applicant had failed to establish extreme hardship.
•  On appeal, counsel states that the applicant has shown that qualifying relative (husband) would experience extreme hardship should the waiver application be denied.
•  Applicant had to prove extreme hardship for the applicant’s spouse if the spouse were to leave with her and if the spouse were to stay in the U.S. without her.
•  AAO found that the applicant demonstrated extreme hardship to her spouse if he were to reside in Mexico. The following factors helped in determining this:
  •  Documented health conditions of the applicant’s spouse
  •  The fact that he is the sole parent of 7 children
  •  Potential job loss a relocation would cause and its psychological effect upon the applicant’s spouse
•  AAO found that the applicant demonstrated extreme hardship to her spouse if her spouse were to remain in the United States. The following factors helped in determining this:
  •  Documented physical and psychological health conditions of the applicant’s spouse
  •  Documented financial difficulties
  •  Responsibilities of being a single parent without assistance from family members