Do current immigration laws in the United States encourage one spouse to falsely accuse the other spouse of domestic violence? This became an important question in a recent case of mine in which my client, who was a permanent legal resident of the United States, was accused by his wife of domestic battery.
My client and his wife were going through a divorce, and she was living in the U.S. illegally. My client maintained that she was falsely accusing him of domestic battery so that she could become a legal resident of the United States. With that thought in mind, I began researching the relationship between U.S. immigration laws and domestic violence. What I discovered was eye opening.
Federal law provides that battered spouses may petition the Attorney General for legal residency in the United States. Moreover, if the battered spouse is divorced from the abusive spouse after filing the petition, the fact that a divorce occurred is not supposed to affect the approval of the petition.
Federal law also provides for the issuance of what are called "U visas." The purpose of this visa is to give victims of domestic violence temporary legal status and work eligibility in the United States for up to 4 years. An application for the U visa is filed with Form I-918. According to section 1.D. of Form I-918, "[a] Federal, State or local government official investigating or prosecuting a qualifying criminal activity [such as domestic violence] certifies . . . that you have been, you are being or you are likely to be helpful to the official in the investigation or prosecution of the criminal act of which you are a victim." In other words, it is not enough for one spouse to simply accuse the other spouse of domestic violence; the complaining spouse must actually file a formal complaint with the prosecuting authorities in order to potentially qualify for a U visa.
Because federal law can provide a powerful motive for a spouse who is living illegally in the United States to falsely accuse the other spouse of domestic violence, it is essential to thoroughly explore that motive in cases of domestic battery.