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Abused Spouses: How Divorce May Affect Your Green Card Chances

by: Heather L. Poole, Esq.

The Violence Against Women Act (VAWA), passed into law in 1994 and amended in 2001, provides hope for immigrant abuse survivors. Under U.S. immigration law, immigrants may obtain a green card ("U.S. permanent residence�) by marrying a U.S. citizen (USC). The USC must, however under the normal course, petition U.S. Citizenship & Immigration Services (CIS, formerly known as �INS�) for an immigrant visa and a green card application for his/her immigrant spouse based on the marriage.

But this process is not always easy on the immigrant � in many instances, it provides one of the most abusive ways a sponsoring spouse can exercise control over the immigrant, by holding the immigrant's tentative immigration status over her.

This is where VAWA helps. Abused immigrants who are married to a U.S. citizen or Lawful Permanent Residents may now petition on their own for an immigrant visa and green card application, without the abuser's knowledge or consent.

However, one of the recurring problems and questions that come up in these abused spouse cases is what happens to the immigrant�s chances for a green card if the abuser goes through on his threat and files for divorce?

Similarly, how is her green card chances affected if the immigrant files for divorce, herself?

Filing for relief under VAWA may still be possible even if divorce proceedings have begun or even if the divorce is final. A divorced immigrant who was subject to extreme cruelty from his or her legal permanent resident or U.S. citizen spouse may apply for an immigrant visa as an abused spouse (eventually leading to a green card) if the petition is filed with CIS (INS) within 2 years following any final divorce decree.

Thus, if the immigrant is already divorced, s/he can still file for VAWA protection, but only if the divorce is 2 years old or less at the time it is filed and can prove that the abuse was related to the reason for or was the reason for the divorce, itself.

The divorced immigrant must still prove the basis elements of a VAWA self-petition including having a real marriage (i.e., not a marriage entered into for immigration purposes) as well as prove that s/he lived with the abuser when they were married at some point.

This provision allowing for divorce immigrants to file applies to all cases that were still being decided by CIS or filed on or after October 28, 2000. There are exceptions to this date, however, so an immigrant in this situation should contact an immigration attorney who regularly deals with VAWA (Violence Against Women cases) to determine if she is eligible to file for immigration protection under VAWA.

If an abused immigrant spouse chooses to not file a VAWA-based immigrant visa petition and chooses to rely on her spouse to sponsor her, if the spouse fails to sponsor her or the case the spouse filed is not approved by the time the divorce is final, that case will be denied and the immigrant will have to start over with either a VAWA-based immigrant visa (if eligible) or some other potential immigrant visa or will be stuck without the means to obtain a green card.

If an immigrant believes that her spouse is going to file for divorce or has already filed for a divorce and has a case based on her spouse's sponsorship currently being decided by INS (CIS), there may be a way to save the green card (adjustment of status) application that is attached to her spouse's immigrant visa filing and file for VAWA immigrant visa to protect herself from her spouse�s threats, and retain her work card and travel authorization instead of having to start all over again with a new green card application.

About the author:
Attorney Heather L. Poole practices family-based U.S. immigration law in Pasadena, California. She is a published immigration author and supervises abuse-based immigration cases at the Los Angeles Commission on Assaults Against Women. She is an active resource to the �Violence Against Women experts� list of the National Lawyers Guild, the National Network to End Violence Against Immigrant Women, and the National Domestic Violence Hotline. She can be reached at 626.432.4550 or heather@humanrightsattorney.com
For more information on the options available to abused immigrants, access

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Seven Sets of Documents You Need For Your Divorce
by: Scott Morgan

This article is designed to give someone who is considering or planning for the possibility of divorce an idea of what documents are needed. Even if you believe your case is ultimately agreed to and settled without a trial, you will be in a much better position if you already have the relevant documents in your possession. Better safe than sorry.

You should locate the relevant documents, make copies, and keep them somewhere secure, like your office or with a friend. You will then have access when it is needed.

Here are the most important seven categories of documents you should focus on.

1. Income Documents

Your spouse's income is relevant to a number of issues in a divorce case. At a minimum, get your spouse's last paycheck statement and your most recent tax return. Ideally, you would have access to all tax returns filed during the marriage, along with all supporting documents and schedules.

2. Bank Records

The monthly bank statements are very important and can lead you to other documents (cancelled checks, deposit slips, registers, etc.) that you also may need to obtain. Get at least the most recent statement for each account that is either held in your name, your spouse's name, or jointly. If possible, get copies of all statements going back to the date of marriage. In most cases this volume of records is not required, but in some cases these records can be very helpful and even necessary to analyze the case.

3. Retirement and Other Investment Records

Often the biggest asset a couple will own will be a 401k or pension account. So you will definitely want the most recent account statement and ideally all statements dating back to the time of marriage. Also, the last statement prior to marriage can be very significant (especially in community property states) to show the pre-marriage balance.

4. Credit Card statements

Again the most recent statements are a necessity, but a lot of important evidence can be garnered from the historical statements. In some cases, the credit card statements will show questionable transactions that can be of real evidentiary value. For example, they might show evidence of gifts or dinners purchased for paramours, questionable hotel rentals, or other dubious purchases.

5. Real estate documents

The most important real estate documents are the Deed of Trust and Warranty Deed for any property you currently own. If you have the entire file from (the giant stack of paper you got after the closing) for each real estate purchase or refinance transaction during the marriage it can be helpful. Additionally, documents evidencing real estate owned by either spouse prior to marriage can be significant, especially in community property states.

6. Mortgage statements & any Other Debts

You should get the most recent statements showing the current payoff balance for any other debts. For those debts that have only a coupon book with no regularly generated statements showing the current balance, you will probably need to contact the creditor by phone for the current payoff information.

7. Relevant emails or other correspondence

Correspondence or emails can be extremely helpful (or damaging, depending on your viewpoint) pieces of evidence in the case. Whether the communication is between spouses or between a spouse and some third-party, the communication is potentially relevant. Two common examples would be where your spouse makes a damaging admission about some issue in the case, or communications with paramours.

Conclusion

Determining which documents you need to obtain for your divorce case can be a very time-consuming and daunting task. Use this list as a starting point and discuss your situation with a quality divorce attorney. This person should be able to advise you specifically on the documents you need to obtain in order to protect your interests.

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