How does a VAWA Self-Petitioner Prove a Good Faith Marriage?

VAWA and U visa cases have a higher rate of Requests for Further Evidence (RFE) issued by immigration authorities as compared to other types of immigration cases and the “good faith marriage” is almost always questioned.

The House Committee on the Judiciary in the legislative history of the 1994 Violence Against Women Act stated —

 “Domestic battery problems become terribly exacerbated in marriages where one spouse is not a citizen, and the non-citizens legal status depends on his or her marriage to the abuser. Current [pre-VAWA 1994] law fosters domestic violence in such situations by placing full and complete control of the alien spouse’s ability to gain permanent legal status in the hands of the citizen or lawful permanent resident spouse. Under the Immigration and Nationality Act, a U.S. citizen or lawful permanent resident can, but is not required to file a relative visa petition requesting that his or her spouse be granted legal status based on a valid marriage. Also, the citizen or lawful permanent resident can revoke such a petition at any time prior to the issuance of permanent or conditional residency to the spouse. Consequently, a battered spouse may be deterred from taking action to protect him or herself, such as filing for a civil protection order, filing criminal charges, or calling the police, because of the threat or fear of deportation. Many immigrant women live trapped and isolated in violent homes, afraid to turn to anyone for help. They fear both continued abuse if they stay with their batterers and deportation if they attempt to leave”·

The legislative history for VAWA 2000 provides additional background —

“Title V is designed to improve on efforts made in VAWA 1994 to prevent immigration law from being used by an abusive citizen or lawful permanent resident spouse as a tool to prevent an abused immigrant spouse form reporting abuse or living the abusive relationship. This could happen because generally speaking, U.S. immigration law gives citizens and lawful permanent residents the right to petition for their spouses to be granted a permanent resident visa, which is the necessary prerequisite for immigrating to the United States. In the vast majority of cases, granting the right to seek the visa to the citizen or lawful permanent resident spouse makes sense, since the purpose of family immigration visas is to allow U.S. citizens or lawful permanent residents to live here with their spouses and children. But in the unusual case of the abusive relationship, an abusive citizen or lawful permanent resident can use control over his or her spouse’s visa as a means to blackmail and control the spouse. The abusive spouse would do this by withholding a promised visa petition and then threatening to turn the abused spouse in to the immigration authorities if the abused spouse sought to leave the abuser or report the abuse. .. VAWA 1994 changed this by allowing immigrants who demonstrate that they have been battered or subjected to extreme cruelty by their U.S. citizen or lawful permanent resident spouses to file their own petitions for visas without the cooperation of their abusive spouse.”

 How Does Proof of a Good faith marriage in VAWA self-petitioning cases fit into this framework?

 Persons applying for marriage based benefits are generally required to establish that they entered into the marriage in good faith. The Immigration and Nationality Act does not define a “good-faith” marriage or provide guidelines for evaluating the bona fides of a marriage. However, a body of case law has developed concerning the interpretation of this requirement.

 The preamble to the VAWA self-petitioning regulations state:

“It has long been held that a marriage that is entered into for the primary purpose of circumventing the immigration laws, referred to as a fraudulent or sham marriage cannot be recognized as enabling a spouse to obtain immigration benefits.”

 To better assess claims and prevent fraud, a centralized, specially trained VAWA Unit processes all crime victim immigration applications filed under the law.  Immigrant victims must undergo a rigorous application process and a criminal background check, and must submit a certification from police or prosecutors to prove their cooperation.

 DHS uses a high degree of diligence and vigilance in adjudicating these cases as compared to other forms of immigration relief. VAWA and U visa cases have a higher rate of Requests for Further Evidence (RFE) issued by immigration authorities as compared to other types of immigration cases. DHS case processing data reveals that the VAWA Unit requires significantly more evidence in VAWA self-petitioning cases when battered spouses and children apply for immigration relief on their own without the abusive U.S. citizen or lawful permanent resident spouse’s knowledge, assistance or consent. The DHS VAWA unit issues a 4 times greater rate of requests for further evidence in VAWA self-petitioning cases than in family based visa petition cases.

 Requests for further evidence rate (DHS 2007-2011)

- 74% VAWA cases

- 18.3% family visa petition cases

 The denial rate for VAWA self-petitioning cases is also higher than for family based visa petition cases generally.

 Denial rate:

- 31.4% VAWA self-petitions

- 21% U visas

- 11.2 % family members of citizens

- 14.2% family members of lawful permanent residents

What kind of proof of good faith marriage or the immigrant’s intent to enter a good faith marriage is required?

 Immigrant victims of battering or extreme cruelty filing VAWA self-petitions bear the burden of proving to DHS that they are or were in good faith marriage to their U.S. citizen or lawful permanent resident spouse. Proof that the alien entered into the marriage in good faith (or in the case of an abusive U.S. citizen or lawful permanent resident spouse’s bigamy) that the immigrant intended to enter into a marriage in good faith) is a required component of any spouse based VAWA self-petition.

 Intent at the time of the marriage:

 Adjudications of good faith marriage requirements apply the same standards as are applicable in family based visa petition cases filed by a U.S. citizen or lawful permanent resident spouse. The statues, regulations and case law which govern what is under immigration law a good faith marriage are the same in VAWA self-petitioning and family based visa adjudications. The key focus of these adjudications is on the intent of the immigrant applicant at the time of the marriage.

 The preamble to the VAWA self-petitioning regulations

“The key factor in determining whether a person entered into a marriage in good faith is whether he or she intended to establish a life together with the spouse at the time of the marriage.”

The person’s conduct after marriage is relevant only to the extent that it bears upon his or her subjective state of mind at the time of the marriage.

 In determining whether the immigrant spouse entered the marriage in good faith how the couple met is evidence but is not dispositive. Immigrants whose marriages to U.S. citizens or lawful permanent residents were of shorter duration will be required by the DHS VAWA Unit to present more extensive proof of good faith marriage than immigrant spouses who have had children with their U.S. citizen or lawful permanent resident spouse or whose marriages were of longer duration.

 What is Considered Credible Evidence of Good Faith Marriage?

The preamble to the self petitioning regulations state that -—

“The Service has previously determined that a variety of evidence may be used to establish a good-faith marriage, and a self-petitioner should submit the best evidence available. Evidence of good faith at the time of marriage may include, but is not limited to. proof that one spouse has been listed as the other’s spouse on insurance policies, property leases, income tax forms, or bank accounts; and testimony or other evidence regarding courtship, wedding ceremony, shared residence and experiences. Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). Other types of readily available evidence might include the birth certificates of children born to the relationship; police, medical, or court documents providing information about the relationship; and affidavits of persons with personal knowledge of the relationship. Self-petitioners who submit affidavits are encouraged to submit affidavits from more than one person. Other types of evidence may also be submitted; the Service will consider any relevant credible evidence.”

 This evidence may include:

-documentation relating to the degree to which the financial assets and liabilities of the parties were combined;”

-documentation concerning the length of time during which the parties cohabited after the marriage and after the alien obtained permanent residence;”

- birth certificates of children born to the marriage;

-police, medical or court records providing information about the spousal or parent child relationship and/or the abuse occurring in that relationship;

-Evidence of the battering or extreme cruelty; or

- Other evidence deemed pertinent.

Proving the “good faith marriage” requirement for VAWA self-petitioners is an art and should not be undertaken without the help of an experienced attorney. In addition, it is very difficult for the self-petitioner to deal with these emotionally painful memories and the objective input of a compassionate attorney can make the difference in overcoming the high denial rates in these cases.

We look forward to hearing from you and discussing your case. There is no charge for an initial telephone consultation. The Law Office of Rose H. Robbins represents VAWA immigration clients from all over the United States since it involves the same Federal laws and regulations.

The Law Offices of Rose H. Robbins represents clients all over the United States and all over the world.  Please call us at: (954) 946-8130 to schedule your free telephone consultation.  This is a FREE consultation and you will not be charged for this call.

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