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Battered or Abused Spouses, Children, or Parents

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018

Ordinarily a petition to classify an alien as a spouse or child of a U.S. citizen or permanent resident, or the parent of a U.S. citizen, must be filed by the sponsoring Topic image for Battered or Abused Spouses, Children, or Parents citizen or permanent resident. The Violence against Women Act (VAWA), however, allows a battered or abused spouse, child, or parent to self-petition for classification. Even though the act is denoted as “Violence against Women Act,” it protects all spouses, children, and parents regardless of gender or sexual orientation.

A qualified battered or an abused person may self-petition without the knowledge of the abusive sponsor. The USCIS would not notify the abusive sponsor (i.e., spouse, parent, or child of the battered or abused spouse, child, or parent) of the filing.

If you are an abused spouse, you need not be married to the abusive spouse at the time you file the petition. You may also proceed under this provision, if the abusive spouse battered or abused your child. When you file under this provision, you may include your unmarried children under 21 as derivative beneficiaries of your self-petition.

Do I qualify to self-petition as a battered or abused person?

You may self-petition as a battered or abuse spouse, child, or parent, if:

  • You are, or you were, married to a U.S. citizen or permanent resident spouse, who battered or abused you. On your petition, you may also include your minor children (unmarried and under 21).
  • You are the parent of a U.S. citizen, who battered or abused you.
  • You are the child, unmarried and under 21, of a U.S. citizen or permanent resident, who battered or abused you. You may file the petition for yourself (as a child), even if you are over 21 but under 25, if you can show that the delay was caused by the abuse. On your petition, you may also include your minor children (unmarried and under 21).

In each case you must (a) prove that you were battered or abused, and (b) meet certain requirements and deadlines (see below). You can apply for this relief, even if the abuser has lost or renounced citizenship or permanent residence because of a domestic violence incident.

What do I need to show to qualify as an abused or battered spouse?

To benefit from this waiver, you must show:

  • You are or were married to the abusive spouse
  • You or your child suffered battery or extreme cruelty by your spouse
  • Your marriage to the abusive spouse was bona fide, i.e., it was a real marriage and you entered into that marriage in good faith
  • You resided with your spouse (you do not need to be residing with the abusive spouse at the time of filing)
  • You are a person of good moral character

You must file your petition as soon as feasible, but no later than 2 years after your marriage ended by death or divorce related to the abuse. If applicable, you must file no later than two (2) years after your abusive spouse lost or renounced citizenship or permanent residence status because of a domestic violence incident.

What do I need to show to qualify as an abused or battered parent?

To benefit from this waiver, you must show:

  • Your abusive son or daughter is a U.S. citizen and at least 21 years of age
  • You suffered battery or extreme cruelty by your abusive son or daughter
  • You resided with your abusive son or daughter (you do not need to be residing with your abusive son or daughter at the time of filing)
  • You are a person of good moral character

You must file your petition as soon as feasible. If your abusive son or daughter dies, you must file no later than 2 years after his or her death. If applicable, you must file no later than two (2) years after your abusive son or daughter lost or renounced citizenship or permanent residence status because of a domestic violence incident.

What do I need to show to qualify as an abused or battered child?

To benefit from this waiver, you must show:

  • You are the child of a U.S. citizen or permanent resident parent
  • You suffered battery or extreme cruelty by your abusive parent
  • You resided with your abusive parent (you do not need to be residing with your abusive parent at the time of filing)
  • You are a person of good moral character. Children under 14 are presumed to be of good moral character.

You must file your petition as soon as feasible. You may file even if your abusive parent lost or renounced citizenship or permanent residence status because of a domestic violence incident.

What are steps that I should follow?

You need to file a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), with extensive supporting documents.

You may file your petition while you are overseas, if your abusive spouse, parent, or child was an employee of U.S. government or a member of U.S. military. You may also file your petition while you are overseas, if the abuse occurred in the United States.

If your petition is approved, you and your children (listed on your petition) would be eligible for permanent residency and citizenship in due course.

Can I file for adjustment of status concurrently with my self-petition?

If your abusive spouse or parent is a U.S. citizen, you may file an adjustment of status application concurrently with the I-360 petition. See Concurrent Filing.

Concurrent filing is also available, when an immigrant visa is immediately available to the beneficiaries. Therefore, if you are an abused parent of a U.S. citizen, you are eligible to file your adjustment of status application together with your I-360 petition.

Can I receive public benefits after filing my petition?

If you are an abused spouse or child and your petition meets the requirements, you will receive a Prima Facie Determination Notice, which would allow you to qualify for public benefits. That notice will be good for 150 days.

Can I stay in the United States while awaiting permanent residence?

If your application is approved but you do not have a legal status in the United States, the USCIS may place you on deferred action status, meaning that you can stay in the country until an immigrant visa is available to you.

Can I work in the United States?

If your petition is approved, you may apply for Employment Authorization Document (EAD), using USCIS Form I-765. Your children listed on your Form I-360 would also be eligible to apply for employment authorization.

If your abusive spouse or child is a citizen (and in the case of an abused child, if you are unmarried and under 21), then a visa would be immediately available to you and you may file an Application for Adjustment of Status together with your petition.  At the same time, you may also file an Application for Employment Authorization. The same would be true, if you are a parent of an abusive U.S. citizen.

Would I receive permanent residence in the United States?

If your petition is approved, you and your children (listed on Form I-360) may apply for permanent residence (green card) when immigrant visa numbers become available to you.  In due course, you may also apply for naturalization (citizenship).

 

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