Immigration Corner | What can a husband do if his wife won't file for him?

Greetings, Mrs Walker-Huntington:

I am writing to you on behalf of a man I've fallen in love with. He touched my heart without physically touching me, and he is a fine, upstanding man. I live in the UK. Our families are from the same parish in Jamaica.

The problem is that he is in the United States and married to an American citizen. She left him, for another Jamaican man. However, she did not file for him and he's been in the States for nearly four years in limbo. Officially, they are still married. He is thinking of shipping his belongings back to Jamaica and going home without getting legal advice.

Does he have any rights to stay in the USA? I'm unhappy because he's unhappy, and with the Trump administration, everything has changed. Please advise. I will be truly grateful.

- J.E.

Dear J.E.,

To gain permanent residence in the United States, you must generally be 'sponsored' by a family member or an employer. In a few instances, persons can 'sponsor' themselves.

Generally, if you are married to a US citizen, that spouse must file a petition for residency on your behalf. That petition and subsequent interview must demonstrate that the marriage is bona fide of, that you have a valid relationship and that you are commingling your assets and your debts. If you are married for less than two years at the time of the interview and the visa is granted, the immigrant receives a two-year green card. Ninety days before the card expires, the immigrant has to file for the permanent 10-year card, showing that the relationship continued beyond the date of the issuance of the green card.

If the couple is divorced, the immigrant still has to demonstrate that the marriage was viable for whatever period they remained with the petitioning spouse.

In a situation where there is a valid marriage in the United States and the US-citizen spouse refuses to petition for the immigrant, they could leave the marriage and explore another relationship that could lead to residency, or, in the case of abuse in the marriage, file a self-petition under the Violence Against Women's Act (VAWA). men are eligible to file.

To be eligible for a VAWA petition, the immigrant must, among other things, show that they entered into the marriage for valid reasons, lived with their spouse, suffered extreme cruelty at the hands of their spouse, and is a person of good moral character. Keep in mind that cruelty is not only physical abuse, but can also include mental and emotional abuse. If your friend does self-petition under the VAWA, his wife would not be notified, and he does not have to remain in the marriage.

Your friend should consult with an immigration attorney experienced in presenting VAWA cases to discuss if his case could be presented as a VAWA petition as there are many nuances to this form of relief.

- Dahlia A. Walker-Huntington, Esq is a Jamaican-American attorney who practises immigration law in the United States and family, criminal, international and personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walkerhuntington.com