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Eligibility to Self-Petition as a Battered or Abused Parent of a USC

USCIS draft memo for comment regarding guidance on amendments to the INA that extend the ability to self-petition to battered parents of U.S. Citizens, and on work authorization for approved VAWA self-petitioners. Comments are due 1/24/11, and instructions are included.

Domestic Violence and Immigration Options

Question: I am a victim of domestic violence. My husband has beat me and beat me. I’m afraid to do anything about it because he has threatened to get me deported. Can you help? Is there any hope?

Answer: Yes, there is hope and options. You do not have to stay in this situation. If I am a victim of domestic violence, sexual assault, or other crimes, what immigration options are available to me? Depending on the circumstances, there are several ways that immigrants who become victims of domestic violence, sexual assault, and some other specific crimes may apply for legal immigration status for themselves and their child(ren). A victim’s application is confidential and no one, including an abuser, crime perpetrator, or family member, will be told that you applied.First, there is the Self-Petitions under the Violence Against Women Act (VAWA) (Form I- 360).  This is for spouses and children of abusive U.S. citizen or lawful permanent residents who have subjected them to battery or extreme cruelty. It is also available for parents of abusive U.S. citizen children (if children are over 21). It allows the victim to apply for legal permanent residency without the help or knowledge of the abuser.
Next, there is the  Battered Spouse Waivers under VAWA (Form I-751): This petition is for a conditional permanent resident who has been subjected to battery or extreme cruelty by a U.S. citizen or lawful permanent resident spouse. It allows the victim to remove the conditions on permanent residence without the help or knowledge of the abusive U.S. citizen or lawful permanent resident spouse.

Next, there is Cancellation of Removal under VAWA (requested in immigration court). This is for spouses and children of abusive U.S. citizens who have subjected them to battery or extreme cruelty and who are in removal proceedings before an immigration judge. It is also available to the parent of a child or step-child who is abused by a U.S. citizen. Among other requirements, victim must have been in the United States for longer than 3 years, and show that removal will cause the victim extreme hardship. This allows the victim to request that the immigration judge cancel the removal proceedings and grant the victim lawful permanent residency.

There are also nonimmigrant visas as well. The  U-nonimmigrant status (crime victims) (Form I-918.) This is for victims of certain serious crimes, including domestic violence, who have suffered substantial mental or physical abuse as a result of criminal activity in the United States. This particular visa requires victims to cooperate in the criminal investigation or prosecution. It allows victims to receive a “U visa,” and, after 3 years, if they can prove
humanitarian need, public interest, or family unity reasons, to apply for lawful permanent residency.

Another nonimmigrant visa is the T-nonimmigrant status (victims of human trafficking) (Form I-914).  This is for victims who have been subjected to severe forms of sex or labor trafficking.  It requires victims to cooperate in the criminal investigation or prosecution. ◦ Allows victims to receive a “T visa,” and, after 3 years, to apply for lawful permanent residency.

Thus, there are options available and there is no need to suffer. You should consult with an immigration attorney right away.

Overview of the Battered Spouse Petition

An Overview of the Battered Spouse Petition – Avvo.com http://ping.fm/I1VWb

Who is Eligible to Apply?

To be eligible to file a self-petition (an application that you file for yourself for immigration benefits) you must qualify under one of the following categories:

Spouse: You may self-petition if you are a battered spouse married to a U.S. citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries.

Parent: You may self-petition if you are the parent of a child who has been abused by your U.S. citizen or lawful permanent resident spouse. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries, if they have not filed their own self-petition.

Child: You may self-petition if you are a battered child (under 21 years of age and unmarried) who has been abused by your U.S. citizen or lawful permanent resident parent. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries


There are numerous immigration laws that could result in the denial of this visa if not properly prepared.  If the petition is put together correctly and professionally by a qualified immigration law firm, the chances of approval is greatly increased.

What is the Basic Procedures for Battered Spouse/Children?

Notice of Receipt: You should receive an acknowledgement or Notice of Receipt within a few weeks after mailing the application and fee to BCIS .

Prima Facie Determination: Battered immigrants filing self-petitions who can establish a “prima facie” case are considered “qualified aliens” for the purpose of eligibility for public benefits (Section 501 of the Illegal Immigrant Responsibility and Immigration Reform Act (IIRIRA). The BCIS reviews each petition initially to determine whether the self-petitioner has addressed each of the requirements listed above and has provided some supporting evidence. This may be in the form of a statement that addresses each requirement. This is called a prima facie determination.

If the Service makes a prima facie determination, the self-petitioner will receive a Notice of Prima Facie Determination valid for 150 days. The notice may be presented to state and federal agencies that provide public benefits.

Approved Self-petition: If the I-360 self-petition is approved, the Service may exercise the administrative option of placing the self-petitioner in deferred action, if the self-petitioner does not have legal immigration status in the United States. Deferred action means that the Service will not initiate removal (deportation) proceedings against the self-petitioner. Deferred action decisions are made by the Vermont Service Center (VSC) and are granted in most cases. Deferred action validity is 27 months for those for whom a visa was available on the date that the self-petition was approved. All others have a validity of 24 months beyond the date a visa number becomes available. The VSC has the authority to grant appropriate extensions of deferred action beyond those time periods upon receipt of a request for extension from the self-petitioner.

Adjustment to Permanent Resident Status: Self-petitioners who qualify as immediate relatives of U.S. citizens (spouses and unmarried children under the age of 21) do not have to wait for an immigrant visa number to become available. They may file the Application To Register Permanent Residence or Adjust Status) with their local BCIS office. Self-petitioners who require a visa number to adjust must wait for a visa number to be available before filing the for Adjustment of Status.

Victims of domestic violence should know that help is also available to them through the National Domestic Violence Hotline on 1-800-799-7233 or 1-800-787-3224 [TDD] for information about shelters, mental health care, legal advice and other types of assistance, including information about self-petitioning for immigration status.


There are numerous immigration laws that could result in the denial of this visa if not properly prepared.  If the petition is put together correctly and professionally by a qualified immigration law firm, the chances of approval is greatly increased.

Who is Eligible to Apply?

To be eligible to file a self-petition (an application that you file for yourself for immigration benefits) you must qualify under one of the following categories:

Spouse: You may self-petition if you are a battered spouse married to a U.S. citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries.

Parent: You may self-petition if you are the parent of a child who has been abused by your U.S. citizen or lawful permanent resident spouse. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries, if they have not filed their own self-petition.

Child: You may self-petition if you are a battered child (under 21 years of age and unmarried) who has been abused by your U.S. citizen or lawful permanent resident parent. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries

Title: The Battered Spouse Petition

Question: I loved my husband when I came to the U.S. However, he is now always threatening to call deportation all the time and he is beating me. I do not want to return to my home country, but if I leave my husband I am afraid that I will lose my chance to ever get my green card. Is there anything I can do?

Answer: Yes. There is what is known as the Battered Spouse Petition for people in your exact situation. If you qualify, you can petition yourself without the help or need of your husband. In fact, by law, the Bureau of Immigration and Customs Enforcement (BICE) cannot use any statement your husband may use against you to try to defeat the petition.

Question: What is required for this type of petition?

Answer: The process of self-petitioning for family-based immigrant visa classification parallels that of filing a family-based petition with the cooperation of the beneficiary’s sponsor. The ultimate result of both petitions is the same; i.e., classification as an immediate relative who is immediately eligible to adjust her status

The following categories of abused individuals can self-petition for a family-based visa: 1) non-citizens who were battered or subjected to extreme cruelty by their U.S. citizen or permanent resident spouse; 2) non-citizen spouses whose children were battered or subjected to extreme cruelty by the non-citizens’ U.S. citizen or permanent resident spouse; and 3) non-citizen children who were battered or subjected to extreme cruelty by their U.S. citizen or permanent resident parent.

The legal status of the self-petitioner or her child is irrelevant: they can be undocumented, in status (with a nonimmigrant visa, for example), or out of status. However, the abuser must be a U.S. citizen or lawful permanent resident.

The non-citizen spouse self-petitioner must show that her marriage to the U.S. citizen or permanent resident spouse was entered into in good faith.

The self-petitioning spouse or her child must have been battered or subjected to extreme cruelty by her spouse during the marriage.

Evidence of abuse may include but is not limited to reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel.

Question: What if I divorce my husband? Will I still be eligible for this petition?

Answer: Yes. You do not and should not live with someone whom is either battering you or subjecting you to extreme cruelty. As long as the petition is filed within 2 years of the divorce, you can divorce him and get out of this abusive relationship. In that way, you will still be allowed to apply for the green card, but will not be in a hurtful relationship.

I have been beaten by my husband. Now what?

Question: I have been beaten by my husband and he never petitioned me. He was a lawful permanent resident, but was deported and now has no status. I really did love him at some point in the past. Is there something I can do?

Answer: You do not have to stay in this relationship and there is something you can do. There is a petition known as the self-petitioning battered spouse provision. Parts of the law providing help in this regard come from provisions of the Immigration and Nationality Act (the Act) by the Victims of Trafficking and Violence Protection Act (VTVPA). Title V of the VTVPA is entitled the Battered Immigrant Women Protection Act (BIWPA), and contains several provisions amending the self-petitioning eligibility requirements contained in the Act.

Question: However, my husband was deported and no longer has legal status in the U.S. Can I still file this petition?

Answer: As long as the petition is filed within two years of when your husband lost his status, you are still eligible to file the petition. For example, if your abusive husband has died, the spouse or child of a U.S. citizen who died within the two years immediately preceding the filing of the self-petition may benefit from the self-petitioning provisions for abusive United States Citizens.

Assuming this is not a case dealing with the death of a USC, you must demonstrate that the abuser’s loss of status was related to or due to an incident of domestic violence, and that you file your self-petition within two years of the loss of status. Thus, in your case, since your husband was deported most likely because of the domestic violence, there would not be a problem filing this petition. You should provide the circumstances surrounding the loss of status; the requisite causal relationship between the loss of status and the incident of domestic violence; and that the loss of status occurred within the two-year period immediately preceding the filing of the self-petition.

Similarly, divorce from an LPR or loss of LPR status by an LPR abuser after the filing of the self-petition shall not adversely affect the approval of the self-petition, nor shall it affect the ability of an approved self-petitioner to adjust status to that of an LPR.

Question: When must I file the application?

Answer: Eligibility to Self-Petition as a Battered Spouse or Child of a U.S. Citizen or Lawful Permanent Resident must be filed within Two Years of the Abuser’s Loss of Status.

Question: What must I provide and what evidence is necessary to be able to file this petition?

Answer: A self-petitioning spouse or child must demonstrate that his or her abusive spouse or parent is or was a U.S. Citizen (USC) or Lawful Permanent Resident (LPR). A self-petition filed by a battered spouse or child must be accompanied by evidence of citizenship of the U.S. citizen or evidence of the immigration status of the lawful permanent resident abuser. Self-petitioners are encouraged to submit primary evidence whenever possible, although adjudicators will consider any relevant credible evidence. USCIS regulations provide detailed information concerning the primary supporting documentation needed as evidence of a petitioner’s U.S. citizenship or lawful permanent residence. Self-petitioners can submit evidence of a spousal relationship to a USC or LPR. Evidence should include a birth certificate issued by a civil authority that shows the abuser’s birth in the United States; The abuser’s unexpired U.S. passport issued initially for a full ten-year period to a citizen of the United States; The abuser’s expired U.S. passport issued initially for a full five-year period to a citizen of the United States who was under the age of 18 at the time of issuance; A statement executed by a U.S. consular officer certifying the abuser to be a U.S. citizen and the bearer of a currently valid U.S. passport; The abuser’s Certificate of Naturalization or Certificate of Citizenship; Department of State Form FS-240, Report of Birth Abroad of a Citizen of the United States, relating to the abuser; and the abuser’s Form I-551 Alien Registration Receipt Card, or other proof given by USCIS as evidence of lawful permanent residence.

Question: What is I cannot find evidence that my husband was a Lawful Permanent Resident?

Answer: If primary evidence is unavailable, the self-petitioner must present secondary evidence. Any evidence submitted as secondary evidence should be evaluated for authenticity and credibility. If a self-petitioner is unable to present primary evidence or secondary evidence of the abuser’s status, the officer will attempt to electronically verify the abuser’s citizenship or immigration status from information contained in DHS computerized records. Other DHS records may also be reviewed at the discretion of the adjudicating officer. It is ultimately, however, the self-petitioner’s burden to establish the abuser’s U.S. citizenship or immigration status. If USCIS is unable to identify a record as relating to an abuser or the record does not establish the abuser’s immigration or citizenship status, the self-petition will be adjudicated based on the information submitted by the self-petitioner.

Thus, if your spouse or parent is abusing you, there is no need to stay. You are able to file a self petition to help yourself and to get status by yourself.

What can I do if my husband is beating me?

Question: I married what I thought was a very loving man. However, after I came to the U.S., he started beating me. Now he threatens that if I tell anyone, he will have me deported and not help me with my petition. What can I do?

Answer: Generally, U.S. citizens (USC) and Lawful Permanent Residents (LPRs) file an immigrant visa petition with the U.S. Citizenship and Immigration Services (USCIS) on behalf of a spouse or child, so that these family members may emigrate to or remain in the United States. Unfortunately, some U.S. citizens and LPRs misuse their control of this process to abuse their family members, or by threatening to report them to the USCIS. As a result, most battered immigrants are afraid to report the abuse to the police or other authorities.

Under the Violence Against Women Act (VAWA) passed by Congress in 1994, the spouses and children of United States citizens or lawful permanent residents (LPR) may self-petition to obtain lawful permanent residency. The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser’s assistance or knowledge, in order to seek safety and independence from the abuser.

Question: Who is Eligible to file this type of petition?

Answer: To be eligible to file a self-petition (an application that you file for yourself for immigration benefits) you must qualify under one of the following categories:

1) The Spouse: You may self-petition if you are a battered spouse married to a U.S. citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries.

2) The Parent: You may self-petition if you are the parent of a child who has been abused by your U.S. citizen or lawful permanent resident spouse. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries, if they have not filed their own self-petition.

3) Child: You may self-petition if you are a battered child (under 21 years of age and unmarried) who has been abused by your U.S. citizen or lawful permanent resident parent.

Question: What are the Basic Requirements?

Answer: The self-petitioning spouse must be legally married to the U.S. citizen or lawful permanent resident batterer. A self-petition may be filed if the marriage was terminated by the abusive spouse’s death within the two years prior to filing. A self-petition may also be filed if the marriage to the abusive spouse was terminated, within the two years prior to filing, by divorce related to the abuse.

You must have been battered in the United States unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States.

You must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage.

You are required to be a person of good moral character. You must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.

You should not live in this abuse and fear. There is help which you should seek.

 

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