Samantha was introduced to Steve in 2009 while she was working for a retail company in Manila. Steve is a U.S. citizen and has been Samantha’s client for a long time. After a few months, Samantha and Steve had a formal relationship. Steve then filed a fiancé visa petition for Samantha.
In 2011, after being married for more than a year, no petition for green card was ever filed by Steve on Samantha’s behalf. A few months after living together, Steve started to act strange. Samantha was often yelled at and prevented from contacting her friends who also live in California. She was forced to stay home and not work because she did not possess any proper immigration document. Every time Samantha raises the issue about her petition, Steve would be upset with her and would show his displeasure. Samantha started feeling scared everyday. A few times, Steve would go home drunk and hurt Samantha by forcing her to have sex with him. When Samantha could no longer bear her situation, she escaped and went to a non-profit organization protecting women who are victims of domestic violence. A self-petition was filed by Samantha under the Violence Against Women Act (VAWA). Since she felt alone and depressed, she did not wait for the result of her petition. She departed for Manila and returned to her former place of employment. Samantha was happier after she separated from Steve.
In the meantime, Steve was prosecuted for domestic violence and served a few months in prison. Samantha’s self-petition was approved by the USCIS after she had already left for the Philippines. If Samantha wishes to pursue her application for immigrant visa based on the self-petition that she filed, will she be able to obtain the visa at the U.S. Embassy? How will her unlawful stay of more than 2 years affect her visa application?
VAWA Self Petition
Those who are survivors of domestic violence may file as “Self Petitioners” under the Violence Against Women Act. These self-petitioners include three categories: (1) spouse of US citizen or green card holders; (2) child of the spouse subjected to extreme cruelty and (3) parents abused by US citizen children at least 21 years old. The survivor must have been subjected to extreme cruelty, which could either be physical, psychological, sexual or emotional abuse.
In the case of Samantha, since she had left for the Philippines, she would still be able to have her visa processed at the U.S. Embassy in Manila. She would need to be interviewed by the consular officer about the circumstances of her case because she would be subject to the 3-10 year bar from returning to the US due to her accrual of more than 1 year unlawful presence in the US.
What Samantha can do to successfully obtain her visa despite the unlawful presence is to explain to the consular officer the substantial connection between the abuse and her prior Unlawful Presence. In this case, Steve had full control over Samantha. He intentionally did not file Samantha’s immigrant petition and the latter was not allowed to leave their conjugal home. This abusive behavior resulted in the unlawful presence of Samantha. If this substantial connection between the abuse and the unlawful presence is established, Samantha may obtain her immigrant visa without facing the 3-10 year bars and travel back to the United States to start her life anew.
(Atty.Lourdes Tancinco may be reached at law@tancinco.com or at 887 71 77 or visit her website at tancinco.weareph.com/old)
