Immigration Law Answers Blog : Texas Immigration Lawyer & Attorney : Kraft & Associates Law Firm : Visas, Green Card, Citizenship, Deportation : Dallas, Texas

In a long-overdue move, the Senate last week approved a law that would stop the so-called "widows penalty" in immigration situations. Until now, if an immigrant had an application for permanent residency on file based on marriage to a U.S. citizen, and the citizen died within the first two years of the marriage, the application was annulled and the immigrant was deported.

This seems especially harsh treatment to an immigrant who has just lost his or her newlywed spouse to a tragic death. To have to deal not only with the personal loss but also with the trauma of having to leave the country is just too great a burden.

The new law, expected to be approved by President Obama, would allow the immigrant to submit his or her own petition for residency within two years of the spouse’s death. The immigrant must not have remarried and must still prove that the marriage was entered into in good-faith.

The law would be retroactive, and would apply to any immigrant whose citizen spouse died less than two years after the marriage, regardless of the date. The immigrant would have two years from the law’s enactment to petition for residency.

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Generally, Lawful Permanent Residents (LPR’s) may be eligible for naturalization upon meeting the naturalization criteria. In order to qualify, an individual must satisfy the following:

1. Must be an LPR;
2. Must be over 18 years of age;
3. After becoming an LPR, must have continuously resided in the U.S. for five years;
4. Must maintain residence for three months in the state where the application is filed;
5. Must have basic English language skills and knowledge of U.S. history and government.

If an LPR does not want to wait five years to apply for naturalization, the LPR may apply for naturalization after three years if he or she is married to a U.S. citizen. If the LPR is married to a U.S. citizen, the continuous residence requirement is three years only if the U.S. citizen spouse has been a citizen for three years and the parties have been married for three years and continue to be married at the time of naturalization. An LPR need not be living with the U.S. citizen spouse after filing the naturalization application, but must continue to be married at the time of naturalization.

Although the continuous residence requirement may be changed from five years to three years (if married to a U.S. citizen), the other requirements must still be met to qualify for naturalization.

If you want to learn more about naturalization and the continuous residence requirement based on marriage to a U.S. citizen, please call us at 214-999-9999.

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A spouse, child or parent who has been subject to extreme cruelty or battery by a U.S. citizen or lawful permanent resident (LPR) spouse or parent may file a Violence Against Women Act (VAWA) self-petition. VAWA petitions are available to the victims of domestic violence and may be either male or female victims. In order to qualify, a victim of domestic violence has to meet several requirements. The self-petitioner must establish that he or she is the spouse of a U.S. citizen or LPR; resides in the United States when the self-petition is filed; resided with the abuser in the United States in the past; has been battered or subject to extreme cruelty by the Citizen or LPR spouse during the marriage; is a person of good moral character; is a person whose deportation would result in extreme hardship to himself, herself, or his or her child; and the victim entered into a good faith marriage with the Citizen or LPR.

Before filing a VAWA case, evidence must be gathered to establish the above-mentioned requirements. For example, the petition must be accompanied by evidence of the marriage relationship, such as a marriage certificate. To satisfy the requirement that the abusive spouse or parent is a U.S. Citizen or LPR, a copy of their birth certificate or resident card should be provided. With respect to providing evidence of the abuse, the victim may include police reports, temporary restraining orders, affidavits from police and judges, medical reports, and letters from doctors. To satisfy a good faith marriage requirement and the requirement that the self-petitioner resided with the abuser, the self-petitioner must submit documentary proof which includes, but is not limited to, joint accounts, credit card bills evidencing both names, apartment leases, driver's licenses showing the same address of both, insurance records held in both names, federal tax returns filed jointly, and birth certificates of children.  In order to show that the victim is a person of good moral character, the self-petition should provide an affidavit from the self-petitioner, accompanied by a local police clearance, and letters from individuals. Evidence of extreme hardship includes affidavits, birth certificates of children, etc.

Once the VAWA petition is approved, the next step will be to proceed with obtaining permanent resident status based on the approved self-petition. Please contact us if you have been or are subject to abuse by a U.S. citizen or LPR spouse, or parent.

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