BATTERED SPOUSE PETITION (VAWA)

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 USCs and LPRs, misuse their control of this process to abuse their family members, or threaten to report them to the USCIS. In such a situation you may file a self-petition (an application that you file for yourself for immigration benefits) as a battered spouse, under the Violence Against Women Act (VAWA), while married to a U.S. citizen or lawful permanent resident to obtain lawful permanent residency. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries. The immigration provisions of VAWA allow certain battered spouses to file for immigration relief without the abusive spouse’s assistance or knowledge, in order to seek safety and independence from the abuser.

Who is Eligible for VAWA?

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.

HOW DO I APPLY FOR IMMIGRATION BENEFITS AS A BATTERED SPOUSE OR CHILD UNDER VAWA ?

The self-petitioning spouse:

• 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 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 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.

Prima facie determination 

The prima facie determination will be made only after a self-petition has been filed with USCIS. In evaluating whether a self-petitioner has established a prima facie case, USCIS must have evidence of each of the required elements of the self-petition. Accordingly, self-petitioners should submit Form I-360 and credible relevant evidence in support of the petition addressing each of the statutory elements:  (1) existence of the qualifying relationship; (2) the citizenship or immigration status of the abuser; (3) the self-petitioner’s eligibility for immigrant classification; (4) residence in the United States; (5) evidence that, during the qualifying relationship, the petitioner and abuser resided together in the United for some unspecified period of time; (6) battery or extreme cruelty ; (7) good moral character; (8) extreme hardship; and (9) in the case of a self-petitioning spouse, good faith marriage. The elements and evidentiary requirements are set forth in 8 CFR § 204.2(c)(1) and (e)(1).  If the Service determines that a petitioner has demonstrated prima facie eligibility, a Notice of Prima Facie Case will be issued.

Frequently Asked Questions 

Can A Man File A Petition For Himself Under The Violence Against Women Act?
Yes, VAWA applies equally to victims of either sex.

 Do I Have to Remain Married to My Abusive Spouse Until my Form I-360 is Approved?
A person may file a Form I-360 if she is still married to her abusive spouse.
If she is no longer married she must meet one of the following exceptions:

• the marriage is not legitimate solely because of the bigamy of the abusive spouse.
• the  spouse died within 2 years of filing the petition.
• the spouse lost or renounce his citizenship or lawful resident status due to an incident of domestic violence
• the marriage was terminated within the 2 years prior to filing of the petition, and there is a connection between the termination of the marriage and the battery or extreme cruelty.

The actual grounds for the termination of the marriage do not need to explicitly cite battery or extreme cruelty. After your petition has been filed, legal termination of the marriage will not usually affect the status of your petition.

After filing I-360 Petition can I remarry?

Form I-360 will be denied if a person re-marries prior to the approval of the Form I-360. Remarriage after the Form I-360 has been approved will not affect the validity of the petition.

What is the priority date of I-360 Petition?
A. If you are the beneficiary of a Form I-130 filed by the abusive spouse, parent or child, you will be able to transfer the priority date of the Form I-130 to the Form I-360. This is extremely important for you if since it may result in an earlier priority date and a shorter waiting time for getting a green card.