What if you are illegal and your legal spouse dies?

By Attorney Monica Ganjoo

QUESTION: Is it possible for someone to apply for the green card if she was married to a United States citizen or Legal Permanent Resident if the spouse has died?

ANSWER: Possibly. This can be done through Form I-360. The widow/widower must have been married for at least two years prior to the spouse’s death. Further, they must show that the application is being filed within two years of the spouse’s death and that they were living together.

QUESTION: What if the United States citizen spouse dies before two years of marriage?

ANSWER: The answer to this question depends on where the person resides. In the Ninth Circuit (California follows the laws of Ninth Circuit), if the United States citizen spouse dies after filing the spousal immediate relative (Form I-130) and after the person has filed for the green card (Form I-485), but before there is a final decision on the spousal immediate relative, the spousal immediate relative can still be approved. Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006). It must be shown that the marriage was a bona fide marriage, one not entered into for gaining immigration benefits. But, if the green card application was not filed before the spouse died, then the spousal immediate relative will be denied.

QUESTION: Is it possible for someone to apply for the green card if she was married to a United States citizen or Legal Permanent Resident if the spouse is still alive, but has been abusive and is refusing to help with immigration paperwork?

ANSWER: Yes. This can be done through Form I-360. You will have to send in documentations and affidavits to prove that you were abused by the United States citizen/Legal Permanent Resident spouse.

QUESTION: Does the abuse have to be physical?

ANSWER: No. The abuse can be physical, mental and/or emotional. You must be able to prove this. A letter from a psychologist, psychiatrist, or therapist would be extremely helpful.

QUESTION: Can the widow or abused individual marry someone else while the I-360 is pending?

ANSWER: No, the individual cannot marry until the Legal Permanent Residence status has been granted.

For more information, you may contact us for a consultation.

MONICA GANJOO is an immigration attorney with offices in San Francisco and San Jose. Ganjoo Law Office currently offers $25 consultations in San Francisco and San Jose. To obtain a consultation in San Francisco, call (415) 495-3710. To obtain a consultation in San Jose, call (408) 975-0500.

SAN FRANCISCO:
870 Market Street
Suite 340
San Francisco, CA 94102
(415) 495-3710

SAN JOSE:
111 West St. John Street,
Suite 513
San Jose, CA 95113
(408) 975-0500

Abused Spouse May Qualify for Cancellation of Removal

By Attorney Crispin Lozano

Abused spouse or the parent of abused child of a U.S. citizen or Lawful Permanent Resident may qualify for Cancellation of Removal and obtain a green card under the Violence against Women Act (VAWA). A work authorization while in proceedings may be requested.

Question: Who qualifies for cancellation of removal and self-petition under VAWA?

Answer: The following qualify for self-petition and cancellation of removal:

1. Abused spouse, former spouse, or intended spouse of a U.S. citizen or lawful permanent resident.
2. Abused child of U.S. citizen or lawful permanent resident.
3. Non-abusive parent of a child who was subjected to domestic violence or extreme cruelty by a U.S. citizen or lawful permanent resident parent.

Question: Who may qualify for cancellation of removal as battered immigrant if they could not file a self-petition?

Answer: The following battered immigrants do not qualify for self-petition but may qualify under VAWA cancellation of removal:

1. Abused spouse who was divorced for over 2 years from the abuser;
2. Abused spouse of a lawful permanent resident who has died or any abused children of a U.S. citizen or lawful permanent resident parent who has died.
3. Parent of an abused child who was never married to the child’s abusive U.S. citizen or lawful permanent resident parent;
4. Abused stepchild whose immigrant parent has been divorced from the abusive parent for over 2 years;
5. Abused spouse or child whose citizen parent gave up citizenship or lost lawful permanent resident for over 2 years;
6. Victims of incest or child abuse who were abused while they were under 21 but failed to file self-petition and who are now over 21 years;
7. Victims of child abuse who cannot establish that they have resided with the abuser.

Question: What are the requirements for cancellation of removal?

Answer: The following are required to cancel removal:

1. Battery or extreme cruelty of the U.S. citizen or Lawful Permanent resident spouse or parent.
2. Three years of continuous presence in the U. S.;
3. Good moral character of applicant;
4. Extreme hardship is she or her child or her parent is deported.

Immigration News

1. On January 5, 2009, we received an approval in Immigration Court of an adjustment of status based on good faith marriage despite an age difference of 18 years.
2. We recently received a grant of asylum for the son of a victim of kidnapping by the NPA in the Philippines.

3. On Dec. 7, 2009, our client Ms. E was approved for a waiver of misrepresentation in the Immigration Court. She has a U.S. citizen mother and daughter and she has been in the U.S. for 17 years. In another case, on October 29, 2009, our request for waiver of misrepresentation for entering as single but actually married for our client Mr. D in Fresno, CA was approved by the Immigration Judge. He is the son of a U.S. citizen and he has been in the U.S. for 20 years. Mr. D can now apply for naturalization and bring his family to the United States. Waiver application is discretionary to the judge after weighing positive and negative factors.

Tip of the Week

1. Green card holders who are interrogated at the port of entry should always ask for a hearing before an immigration judge to avoid removal.
2. Green cards without expiration date should be renewed. They have the alternative of applying for naturalization.

3. Applicants for adjustment of status through marriage are being separately interviewed if there is a wide difference in age, education, language, or suspicions in the application filed.
4. Income tax filing is required in the proposed legalization. Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened. It is also needed by employers to charge to expense payment for contractual job. Our office assists clients in obtaining ITIN.

Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration law. He earned his Juris Doctor at Western State University College of Law in Fullerton, California. He is also a CPA and a Bachelor of Business Administration Cum Laude graduate. His offices are located at 1290 B Street, Suite 203, Hayward, California 94541; at 17057 Bellflower Blvd. Suite 205, Bellflower CA 90706 and at 777 N. First St., Suite 333, San Jose, CA 95112. You can contact him at telephone number (510) 538-7188.