Tag: fiancé visa

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No 3-10 Year Bar for Survivor of Domestic Violence

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October is Domestic Violence Awareness Month. It is important for our community members to understand that survivors of domestic violence most especially the vulnerable immigrants who were abused by their petitioners have the privilege to self petition under the Violence Against Women Act. Let us revisit the case of Samantha who left for the Philippines after being abused by her U.S. citizen spouse.

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.

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 her 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. 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?

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. 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 apply and be granted her immigrant visa without facing the 3-10 year bar.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, or through facebook.com/tancincolaw.)

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Provisional Waiver New Rules to Benefit More Unauthorized Immigrants

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A significant number of unauthorized immigrants who have been petitioned by U.S. citizen or residents’ relatives or employers still find themselves, after many years, still without legal status. Those who are not eligible, among others, include those who entered without inspection, fiancé visa holders with new partners, as well as those who entered with crewman visas. Generally, for those petitioned in family and employment-based preference categories they may adjust status only if they are in lawful status.

In 2013, the provisional waiver rules was released by the U.S. Citizenship and Immigration Services (USCIS) giving immediate relatives of U.S. citizens who are ineligible to adjust an opportunity to obtain a provisional waiver, leave the U.S. and get their immigrant visa at a U.S. Embassy or consulate abroad. Upon their return, they are considered legal residents after having cured their only ground of inadmissibility which is “unlawful presence” through approval of their provisional waiver. Unfortunately, this 2013 provisional waiver is very limited.

On July 29, 2016 USCIS announced that it is expanding the provisional waiver program. There are five changes to the provisional waiver rules.

First, more unauthorized immigrants may now apply for the provisional waiver and will have the opportunity to legalize their stay in the United States. In 2013, only those with immediate relative petitions were eligible for provisional waiver. Now, in 2016, individuals petitioned in any of the family or employment based preference categories may now apply for provisional waiver. The priority dates of these visa petitions must be current which means that there is an available visa and that the beneficiary does not have any other ground of inadmissibility other than being “out of status”. The Second change in the rule is consideration of additional relatives who may be qualifying relatives. For purposes of the extreme hardship requirement to qualifying relatives, the new rule now permits LPRs or green card holder parents and spouses to be considered for purposes of showing extreme hardship.

Thirdly, besides expanding the scope of petitions covered by the provisional waiver, the new rules also allow those in removal proceedings or those with removal orders to apply for provisional waiver.

Fourth, the new rules now clearly states that USCIS may no longer use the “reason to believe” that there are other grounds of inadmissibility to deny the provisional waiver. In the 2013 rules, despite an apparent eligibility for provisional waiver USCIS nevertheless denied waiver applications based on “reason to believe”. This is now eliminated in the 2016 rules.

Lastly, the Department of State “interview schedule” bar has been eliminated. USCIS may now allow applicants to apply for provisional waiver despite having been scheduled for a visa interview prior to 2013. In eliminating this bar, there will be more applicants who may qualify for the provisional waiver.

Those who may eligible may now prepare to file their applications for provisional waivers in time for the effectivity date of the new rule which is August 29, 2016.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through tancinco.weareph.com/old)