Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I married what I thought was a very loving man. However, after I came to the U.S., he started beating me. Now he threatens that if I tell anyone, he will have me deported and not help me with my petition. What can I do?

Answer: Generally, U.S. citizens (USC) and Lawful Permanent Residents (LPRs) file an immigrant visa petition with the U.S. Citizenship and Immigration Services (USCIS) on behalf of a spouse or child, so that these family members may emigrate to or remain in the United States. Unfortunately, some U.S. citizens and LPRs misuse their control of this process to abuse their family members, or by threatening to report them to the USCIS. As a result, most battered immigrants are afraid to report the abuse to the police or other authorities.

Under the Violence Against Women Act (VAWA) passed by Congress in 1994, the spouses and children of United States citizens or lawful permanent residents (LPR) may self-petition to obtain lawful permanent residency. The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser’s assistance or knowledge, in order to seek safety and independence from the abuser.

Question: Who is Eligible to file this type of petition?

Answer: To be eligible to file a self-petition (an application that you file for yourself for immigration benefits) you must qualify under one of the following categories:

1) The Spouse: You may self-petition if you are a battered spouse married to a U.S. citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries.

2) The Parent: You may self-petition if you are the parent of a child who has been abused by your U.S. citizen or lawful permanent resident spouse. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries, if they have not filed their own self-petition.

3) Child: You may self-petition if you are a battered child (under 21 years of age and unmarried) who has been abused by your U.S. citizen or lawful permanent resident parent.

Question: What are the Basic Requirements?

Answer: The self-petitioning spouse must be legally married to the U.S. citizen or lawful permanent resident batterer. A self-petition may be filed if the marriage was terminated by the abusive spouse’s death within the two years prior to filing. A self-petition may also be filed if the marriage to the abusive spouse was terminated, within the two years prior to filing, by divorce related to the abuse.

You must have been battered in the United States unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States.

You must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage.

You are required to be a person of good moral character. You must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.

You should not live in this abuse and fear. There is help which you should seek.

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Question: My husband and I have tried for years to have a baby. Unfortunately, we have been unable. However, we have found a beautiful baby girl from the Far East. She is an orphan and we thought we could just adopt her and bring her back to the U.S. It appears that this is not the case. Please let me know what we have to do to bring our future daughter home.

Answer: First, the child has to qualify as an orphan. First she must be under 16 at the time the visa petition is filed. Next, the child’s parents must have been either killed or abandoned or deserted her. If one parent is still alive, that parent must commit in writing a document that he or she is completely unable to care for the child and is giving the child up for adoption. Next, you have to qualify to adopt the child. For an orphan petition, you must be a U.S. Citizen and adopting the child jointly with your spouse. Alternatively, one can be an unmarried U.S. Citizen who is at least 25 years old.

Question: How do we go about adopting the orphan?

Answer: There are two ways to adopt an orphan. First, the child may be adopted abroad by a couple or an unmarried U.S. citizen if they personally saw or observed the child before or during the adoption proceedings. Second, the child may come to the United States for adoption by the couple or unmarried person if they have complied with the preadoption requirements, if any, of the child’s proposed U.S. residence. In addition, the Immigration must be satisfied that proper care will be provided for the child.

Question: How do we petition to get the orphan here into the U.S.?

Answer: Petitioning for an orphan involves two distinct determinations. The first determination focuses on the ability of the prospective adoptive parent(s) to provide a proper home environment and on their suitability as parents. This determination is based primarily on a home study and fingerprint checks submitted with the advanced processing application. The second determination, based on the orphan visa petition, concerns whether the child is an orphan under the INA. The prospective adoptive parent(s) may submit documentation for each of these determinations separately or at one time, depending on when the orphan is identified. An orphan visa petition cannot be approved unless there is a favorable determination on the advanced processing application. A favorable determination on the advanced processing application, however, does not guarantee that the orphan visa petition will be approved.

If the State which you are living has preadoption requirements, they must be complied with.

Question: After both petitions are filed, how can I bring our child into the United States?

Answer: First, an orphan petition can be denied for a variety of reasons, including: (1) failing to establish financial ability to care for the child; (2) failing to establish that the child is an orphan; (3) failing to establish an ability to care for the child properly; (4) filing the orphan petition more than 18 months after the I-600A advanced processing application has been approved; or (5) evidence of child-buying. The regulations define child-buying as any money or other consideration given directly or indirectly to the child’s parents, agents, or other individuals as payment for the child or as an inducement to release the child.

Assuming it has been approved, the Immigration will notify the parents and the U.S. embassy or consular post that will issue the visa on approval of the application. The State Department must then complete what is known as an I-604 investigation. If the I-604 investigation reveals negative information, the information is forwarded to the INS for appropriate action.

If the I-604 investigation reveals nothing adverse and the case is otherwise clearly approvable, the State Department consular officer will issue the visa to allow the orphan to enter the United States. If the petition is not clearly approvable, however, the consular officer will refer the case back to Immigration.

As of February 27, 2001, an orphan becomes a U.S. citizen automatically upon admission to the United States, as long as the child is entering on an immigrant visa.

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Brian D. Lerner is an Immigration Attorney Specialist. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.californiaimmigration.us.

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