I-360 VAWA: Marriage Annulled Before Adjustment of Status Green Card Approved
Anyone who says marriage is easy hasn’t been married.
Sometimes no matter how hard you try, it just doesn’t work out. There are those who’s marriages end in abuse and the thought of divorce or annulment could be deportation.
A reader of this blog recently asked me: “will an annulment of my marriage affect my I-360 VAWA application?”
This is such a great question that I had to write this post about it. First, let’s discuss what VAWA is and who it protects.
VAWA was passed by Congress in 1994 to protect immigrants who came to the U.S. and were subjected to domestic abuse by their petitioner (U.S. relative). It allows the abused immigrant to self-petition for a green card without the help of the U.S. relative.
“Alison has been married to Brian for 9 months and she arrived on a K1 fiancee visa. Within a month of their marriage, she noticed that Brian would become verbally abusive towards her, calling her names and yelling at her. The verbal abuse turned into physical violent that continued to escalate. Alison found out she was pregnant 5 months later and feared the abuse would cause harm to her child.
Alison told a friend from church about her fears and received help from her pastor to get out of the marriage. She was able to find a local shelter where she could stay and found a non profit immigration attorney that helped her file for I-360 VAWA self petition to get a green card.”
In this case, Alison can self petition using form I-360 Petition for Amerasian, Widow(er), or Special Immigrant. She will need to prove that her marriage was bona fide and that she is a person of good moral character.
What Is The Different Between Divorce and Annulment?
We are all pretty familiar with what divorce is but marriage annulment isn’t as common. The only person that I know who actually got their marriage annulled was my own brother. His marriage lasted 9 months and they both decided to go their separate ways.
I’m not sure of what they needed to prove to get their marriage annulled but it’s not as easy as a divorce. Back in the day, divorce used to be a bad word and people looked down on you if your marriage didn’t work out.
Today, about half of couples that walk down the aisle end up filing for divorce. But getting your marriage annulled is much harder than just filing the documents.
What Factors Can Annul A Marriage?
- You are close blood relatives, or close relatives by marriage or adoption (first cousins, siblings)
- You were impotent and the marriage was not consummated (no sexy time took place)
- You were still legally married to another person when the marriage took place
- You were not legally old enough to be married at the time
- You were forced into the marriage
- You were not mentally competent when you entered into the marriage
- Your marriage was fraudulent (green card fraud, criminal history, sexually transmitted diseases or impotence)
How Will A Marriage Annulment Affect A VAWA Case?
For those of you who are filing formI-360 for your green card, you should know how an annulment will affect your VAWA case. First, let’s talk about what evidence you need to submit to make a strong case for abuse.
Evidence of a Shared Home
- employment records,
- utility receipts,
- school records,
- hospital or medical records,
- birth certificates of children,
- rental records,
- insurance policies
- affidavits from friends and family
Evidence of Abuse
- reports and affidavits from police
- court records of abuse
- medical records of abuse
- reports from school officials,
- reports from social workers
- order of protection
Proof of Good Moral Character such as State-issued criminal background check and police clearance from all countries you lived in for more than 6 months in the last 3 years.
Evidence of Extreme Hardship
- birth certificates of children,
- medical reports,
- other relevant credible evidence of the extreme hardship
Evidence of Good Faith Marriage
- insurance policies,
- property leases,
- income tax forms, or
- bank accounts;
- testimony or other evidence regarding your courtship,
- wedding ceremony,
- shared residence,
- experiences showing that your marriage was entered in good faith.
Annulment Granted Before You Filed VAWA
If your marriage was annulled before you filed for VAWA, there is little chance of you being successful. The reason you case will likely be denied is because a VAWA petition is based on a valid marriage. You can’t be an abused “spouse” if your marriage was null and void.
This is why I recommend that you fight the annulment of your marriage as hard as you can. It’s better to get a divorce when it comes to immigration benefits. But, there are U.S. spouses that will claim marriage fraud when the relationship ends for other reasons such as abuse.
Annulment Granted After You Filed VAWA
If your marriage was annulled after you filed for VAWA, it will be processed and it may in fact be approved. Since a VAWA case doesn’t require an interview, USCIS may not realize that your marriage has been annulled.
What gets you into trouble is the green card application using form I-485 because an interview is almost always scheduled. You’ll then need to explain why your marriage was annulled and immigration officials may deny your green card application because your marriage is now null and void. It’ll be hard to prove you entered the marriage in good faith if it no longer existed.
It’s really unfortunate because most immigrants have no idea what the immigration consequences are with each decision that’s made.
How A Marriage Fraud Accusation Affects A VAWA Case
Being accused of marriage fraud is like a death sentence for those hoping to get a green card. This is because USCIS is already suspicious of all immigrants before they even make their case. I’m not saying that fraud doesn’t happen when it comes to U.S. immigration, but I am sure that some are based on revenge.
I’ve recently written about fraud and misrepresentation during the application process and waivers that are available. In the case of a marriage ending badly, the U.S. spouse has an incentive to claim that the marriage was based on fraud. Even though they probably have no evidence of this.
If you are accused of committing marriage fraud to get a green card, rest assure that you are at the bottom of USCIS priority list. Why? Because you entered the country legally. ICE is more interested in people who have entered the country without inspection and therefore have no legal status at all.
Isabelle met Henry online and when he came to visit her in Panama, he proposed. They quickly applied for a K1 fiancee visa so Isabella could move to the U.S. to be with him. After she moved, they got married at the courthouse but Henry decided not to file for adjustment of status (I-485) due to the expense and he thought it wasn’t necessary.
Isabelle was subjected to verbal and physically abuse by Henry. He felt as though he owned her and could control her. He told her that she should be grateful that he brought her to America. Isabelle feared for her safety and decided to leave the shared home and seek help. She filed for VAWA with the help of a non profit attorney. After a few months, she realized that Henry notified USCIS that he believed Isabelle married him for a green card.
Isabelle will have a difficult time convincing USCIS that she didn’t commit marriage or immigration fraud. She can do this by submitting evidence of a bona fide marriage to prove she entered the marriage for love. The next thing she needs to do it file for divorce because with VAWA she can file for herself.
If Henry chooses to get the marriage annulled due to fraud, she must do what she can to fight it. Marriage annulment makes it almost impossible to file a successful VAWA case and receive a green card.
Final Thoughts on VAWA and Marriage Annulment
Filing for VAWA is only the first step in getting a green card without the help of your spouse. It won’t be easy and you’ll need to prove that your marriage is bona fide, but this is an option for those of you who feel hopeless.
Update: If your spouse was a U.S. citizen and you sent both forms I-485 and I-765 concurrently, then you will be eligible to receive a work permit (I-765).
The category of eligibility of the work card will be c- 09 which is available for those that apply for adjustment of Status.
But, if you don’t send forms I-485 and I-765 together, then will need to wait until the VAWA is approved to apply for a work card under category c-31.
You can follow this step-by-step guide on how to file a VAWA self-petition.
I have a good friend of mine that has gone though a very abusive marriage and has successfully applied for VAWA. She is still waiting for her green card but now she feels she has more control over her life. VAWA has definitely saved a lot of immigrants heartache and has given them hope.
But, there are some who abuse the VAWA process by submitting fraudulent applications and accusing their U.S. spouse of being abusive. In most of these cases, USCIS can see right though the fake abuse claim and the I-360 is ultimately denied. It’s hard to fake abuse because you are actually required to submit physical evidence that spans a specific time period.