How Do I Apply for Immigration Benefits
as a Battered Spouse or Child?
Background
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. USCIS Form I-130, Petition for Alien Relative is filed by the USC/LPR,
the petitioner, on behalf of the family member who is the beneficiary. The
petitioner controls when or if the petition is filed. 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. Victims of
domestic violence should know that help is 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.
What is the Legal Foundation?
The Immigration and
Nationality Act (INA) is the law that governs immigration in the United States.
The Violence Against Women Act (VAWA) provisions relating to immigration are
codified in section 204(a) of the INA. Rules published in the Federal Register
explain the eligibility requirements and procedures for filing a self-petition
under the VAWA provisions. These rules can be found in the Code of Federal
Regulations at 8 CFR § 204. The Battered Immigrant Women Protection Act of 2000
(BIWPA) made significant amendments to section 204(a) of the INA.
Self-petitions may be filed according to the amended requirements but
adjudication may be delayed until rules are published.
Who is Eligible?
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. For more
information, please see How Do I Bring My Child to Live in
the United States?. 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
What are the Basic
Requirements?
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.
·
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.
·
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.
·
Is
required to be a person of good moral character.
·
Must
have entered into the marriage in good faith, not solely for the purpose of
obtaining immigration benefits.
The self-petitioning child:
·
Must
qualify as the child of the abuser as "child" is defined in the INA
for immigration purposes.
·
Any
relevant credible evidence that can prove the relationship with the parent will
be considered.
How Do
I Apply for Benefits?
To self-petition, you must complete and file USCIS Form I-360 (Petition for
Amerasian, Widow(er), or Special Immigrant) and include all supporting
documentation. Self-petitions are filed with the Vermont Service Center and
should be sent by certified return receipt mail (or any other method providing
assurance of receipt). Sending the Form I-360 to any other USCIS office will
delay your application. You should keep a copy of everything you submit,
including the application and all accompanying documents, in addition to the
proof of mailing.
Forms are available at the Immigration Forms tab at the top of this
page, in person at a USCIS office, by calling 1-800-870-3676, or by submitting
a request through our forms by mail system.
What is the Process?
Notice of Receipt: You
should receive an acknowledgement or Notice of Receipt within a few weeks after
mailing the application and fee to the USCIS.
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 USCIS 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.
Employment Authorization:
Self-petitioners and their derivative children who have an approved Form I-360
and are placed in deferred action are also eligible for an Employment
Authorization Card. To apply, USCIS Form I-765 (Application for Employment
Authorization) should be filed with the Vermont Service Center. Applicants
should indicate that they are seeking employment authorization pursuant to 8
CFR 274a.12(c) (14). The Form I-765 must be filed with a copy of the
self-petitioner's USCIS Form I-360 approval notice. For more information on
work permits, please see How Do I Apply for a Work Permit (Employment
Authorization Document)?.
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 USCIS Form
I-485 (Application To Register Permanent Residence or Adjust Status) with their
local USCIS office. Self-petitioners who require a visa number to adjust must
wait for a visa number to be available before filing the Form I-485. The wait
for visa numbers can be anywhere from 2-10 years. Please see How Do I Get an
Immigrant Visa Number? and How Do I Become a Permanent Resident While in the United States?
for more information. In addition, if you are a battered spouse or child with
conditional permanent resident status, please see How Do I Remove the
Conditions on Permanent Residence Based on Marriage?.
Some self-petitioners with an
approved Form I-360 will be required either to apply for adjustment of status
under section 245(i) (which requires payment of a penalty fee), or to apply for
an immigrant visa at a U.S.
consular post abroad. To apply for adjustment of status under 245(i), the
self-petitioner must apply using USCIS Form I-360, Petition for Amerasian,
Widow(er), or Special Immigrant, before April 30, 2001. Futhermore, the petitioner
must prove he or she was physically present in the United States on December 21, 2000.
In addition, you may a be a "grandfathered" alien. You are considered
"grandfathered" if the I-360 petition was filed on or before January
14, 1998. You are also considered "grandfathered" if you had an
immigrant visa petition in another category (for example, a Form I-130 petition
filed by your spouse or parent) filed with the Service on or before January 14,
1998 or labor certification application filed with the Department of Labor on
or before January 14, 1998. Recent changes to section 245 of the INA enabled
some self-petitioners to apply for adjustment of status through the normal
process without resorting to the 245(i) process.
How do I File an Appeal
if My Application is Denied?
If your application is
denied, the denial letter will tell you how to appeal. Generally, you may file
a Notice of Appeal along with the required fee at the Vermont Service
Center within 33 days of
receiving the denial. Once the fee is collected and the form is processed at
the Service Center,
the appeal will be referred to the Administrative Appeals Unit in Washington, D.C.
Sending the appeal and fee directly to the AAU will delay the process. For more
information, see How Do I Appeal?.
Can Anyone Help Me?
If advice is needed, you may
contact the USCIS District Office near your home for a list of community-based,
non-profit organizations that may be able to assist you in applying for an
immigration benefit. Please see our USCIS field offices home page for more
information on contacting USCIS offices. In addition, please see our Webpage
that provides information on free legal advice.
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.
Frequently Asked
Questions
Q. Can a man file a
self-petition under the Violence Against Women Act?
A.
Although the self-petitioning provisions for victims of domestic violence are
contained in the Violence Against Women Act, they apply equally to victims of
either sex.
Q. Must the self-petitioner
remain married to the abusive spouse until the self-petition is approved?
A. The
regulations only require that the self-petitioning spouse be married at the
time of filing. After the self-petition has been filed, legal termination of
the marriage will not usually affect the self-petition, but you may want to
seek advice from an immigration attorney or legal advocate. Statutory changes,
effective October 28, 2000, allow for the marriage to have been terminated
(there are some restrictions) within two years prior to the date of filing.
Q. Can a divorced spouse seek
relief through self-petitioning?
A.
Statutory changes, effective October 28, 2000, allow for the marriage to have
been terminated (there are some restrictions) within two years prior to the
date of filing. A battered spouse who does not meet these restrictions may be
eligible for cancellation of removal. This is provided for under Section
240A(b)(2) of the INA. To qualify he/she must meet the other requirements that
would be necessary for approval of a self-petition and must have been
physically present in the U.S. for 3 years immediately preceding the filing of
the application for cancellation of removal.
A self-petition will also be
denied if the self-petitioner re-marries before filing or after filing and
before the self-petition is approved. Remarriage after the self-petition has
been approved will not affect the validity of the approved I-360 self-petition.
Q. What if the abusive US
citizen/LPR did file a Form I-130 petition on behalf of the battered spouse
which is either still pending or was withdrawn?
A. A
self-petitioner who is the beneficiary of a Form I-130 petition filed by the
abusive spouse will be able to transfer the priority date of the Form I-130
petition to the I-360 self-petition. This is extremely important for
self-petitioners who must wait for a visa number as an earlier priority date
will result in a shorter waiting time.
Please see How Do I Get an
Immigrant Visa Number? for more information.