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Fiance and Spousal Visas and the Issue of Domestic Abuse. [2011.03.13]
Thousands of foreigners enter the United States on K1 or K3 visa every year. If you fall in love and plan to marry an American Citizen you can use either of those two routes for your way in. Those who prefer to tie the knot on the American soil might want to consider a K1 also known as a Fiance visa. When fiance is cleared and allowed through the port of entry, there is 90 days period to get married. Missing the deadline means becoming out of status and facing the likely removal. Many aliens prefer to wed surrounded by family in their homeland. Those could be petitioned by the US Citizen Spouse to receive a K3 also known as a Spousal visa. The price for both K1 and K3 visas are about the same, including attorney and government fees. The Adjustment of Status joint petition usually follows either the marriage of a K1 alien or arrival to US of a K3 alien. It transforms aliens into a Legal Permanent Resident (LPR), otherwise known as a Green Card holder.
If by the time of petition to adjust the status to LPR the marriage is shorter than two years, the foreigner Spouse will get a Conditional Permanent Resident status for the term of two years. This serves as a safeguard against pretense marriages that are entered only for the purpose of immigration. The foreign spouse gets the Conditional Status removed only upon marriage surviving the two years trial period. If the marriage is alive and genuine, the couple jointly files for the Removal of the condition and the LPR status gets extension for the term of ten years. After three year mark as an LPR married to a US Citizen, the foreign spouse is allowed to apply for the US Citizenship.
This article, however, is not about mechanisms of spousal immigration. Often, immigration attorneys get phone calls from people who are already inside the US. Most of them are on their two year Conditional LPR term. Sometimes they are on their ninety days Fiance visa term. All of them have one thing in common: their marriage/wedding plans are falling apart. Consequently, due to the failure of their marriage they face the likelihood of being removed from the country. Often, they have nowhere to go. Back in their own country they sold everything and burned all bridges. They most likely did not bother to prepare a prenuptial agreement to protect their retreat from the dream marriage in the US.
The general divorce rate in USA often breaks 50% mark. In domestic divorce each party gets almost half of the marital estate and a prospective of spousal or child support. Details vary from state to state and are subject to prenuptial agreements. No one, however, is left without a financial support. For foreigners in international marriages divorce could have different consequences. When foreign spouse enters the short living marriage, there is not much of marital estate to be divided. Many foreign spouses are left without any financial means to hire an attorney and to discover their rights in a divorce situation. Commonly, the US Citizen spouses withdraw their support, claiming that immigration to US was the only reason their ex-better halves entered the country. Alien Spouse gets overwhelmed and scared. Penniless existence and deportation are often foreign spouses' only prospective.
It gets much worse for an alien spouse when they befall victims of domestic abuse. Many stories on Spousal abuse in international marriages are posted on the Internet. The isolation inside the new American home is usually not fully contemplated by those who are blinded by love and immigration dreams. It also happens that some US Citizen Spouses are abusive. Among the first signs is the citizen spouse’s refusal to allow the foreign “better half” to have any ownership in property or share in bank accounts. Things like that are absolutely unfeasible in domestic marriages. Not understanding the language adds to seclusion. Some spouses end up in a position of sex slaves being locked up in unfriendly homes. Their abusers torment them with threats of deportation or promise to tell the authorities that their marriage was an immigration sham.
In either situation, foreigners should contact an immigration attorney immediately. Time is money and could not be wasted. There are ways of getting to stay even when the divorce is imminent before the two year mark. If the alien spouse was subject to physical or psychological abuse, the joint petition for the removal of Conditional residence could be waived under the extreme cruelty exception. It could also be granted, if the deportation or removal from the United States would result in the extreme hardship. Additionally, the waiver could be approved if the alien spouse is able to establish that the marriage upon which his or her status was based was entered into in good faith by the conditional resident alien, but the marriage was terminated other than by death, and the conditional resident was not at fault in failing to file a timely petition. Immigration attorney should be able to sort through facts during the consultation and suggest the best possible route for alien spouse to pursue. Such process should not be pursued alone as consequences of mistakes could result in deportation. If your citizen spouse gets physically abusive, do not hesitate to call the police immediately. Filing the police report while the traces of abuse are visible could be your major evidence in the extreme cruelty argument. The highly publicized immigration case involving Oksana Grigorieva and Mel Gibson might have much faster outcome and involvement of less than 39 immigration attorneys if the evidence of physical abuse was more than mere phone call recordings.
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