By: Jean S. Tinsay, Esq.
Sylvia came to America carrying her hopes and dreams for a better life. Sadly, those dreams quickly turned into a nightmare. While working as a volunteer back in the Philippines she met Gordo who was the nephew of one of her patients at the hospital. Gordo was a U.S. citizen who having been laid off from his job in the U.S. work was vacationing in the Philippines. After a whirlwind courtship, they were married and he brought her to the United States.
Upon her arrival and at the prodding of her husband, she immediately took the nursing examination. Unfortunately, she failed to pass the test. Jobs were hard to find and since Sylvia had no local experience the only work she could get was that of a caregiver. Sylvia, however, was just glad to be working and able to contribute her meager salary to the family coffers as well as send some money to her family back home. Not Gordo whose plan of having a registered nurse for a wife to support him was thwarted. He started taking out his frustration on Sylvia. At first, it was just berating her and finding fault in everything she did. The yelling and screaming turned into threats and quickly escalated into physical violence. On two occasions, well meaning neighbors had called the police to their house. Gordo threatened to have her deported if she ever files a complaint against him. Since she came to the United States as the spouse of a U.S. citizen, Sylvia was granted conditional resident status which expires in two years from the time she entered the United States as an immigrant.
A person who obtains immigrant status in the United States through marriage to a U.S. citizen or permanent resident is granted a conditional two-year resident status in the United States. In order to remove the conditions on residence, the conditional resident is required to file together with the U.S. citizen or permanent resident spouse a joint petition to remove the conditions on residence. The joint petition must be filed within 90 days before the second anniversary of the grant of conditional residence. Failure to file a joint petition to remove conditions on residence will result in the automatic termination of resident status as of the second anniversary of the grant of conditional residence and subject the conditional resident to removal proceedings.
However, the conditional resident may request for a waiver of the joint filing requirement if the conditional resident can establish that:
1. The marriage was entered in good faith, and the U.S. citizen or permanent resident spouse subsequently dies;
2. The marriage was entered in good faith, but the marriage was later terminated due to divorce or annulment;
3. The marriage was entered in good faith, but the conditional resident was battered or subjected to extreme cruelty by the U.S. citizen or permanent resident spouse; or
4. The removal of the conditional resident from the United States will result in extreme hardship.
In this case, Sylvia leaving her abusive husband need not result in termination of her resident status and subsequent removal from the United States. As a battered spouse, she can request for a waiver of the joint filing requirement and file the petition to remove conditions on residence on her own. She will need to establish her eligibility for a waiver (as a battered spouse) by submitting credible evidence of the abuse she suffered from the hands of her U.S. citizen husband such as copies of the police reports, medical reports, statements from neighbors and photographs showing her injuries. If Sylvia is successful in establishing that she is a battered spouse and that she entered the marriage in good faith, the CIS will approve her petition, the conditions on her residence will be removed and she will obtain permanent resident status in the United States.
Atty. Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; jtinsay@ctvattys.com.