BATTERED SPOUSE IMMIGRANT VISA

 

 

INTRODUCTION

 

As a battered spouse, child or parent, you may file an immigrant visa petition under the Immigration and Nationality Act (INA), as amended by the Violence Against Women Act (VAWA).  The VAWA provisions in the INA allow certain spouses, children, and parents of U.S. citizens and certain spouses and children of permanent residents (Green Card holders) to file a petition for themselves, without the abuser's knowledge. This allows victims to seek both safety and independence from their abuser, who is not notified about the filing. The VAWA provisions, which apply equally to women and men, are permanent and do not require congressional reauthorization.

 

WHO MAY FILE?

  • 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, or if you were abused by your U.S. citizen son or daughter. 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

  • 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

 

ELIGIBILITY REQUIREMENTS FOR A SPOUSE

  • Must be legally married to a U.S. citizen or lawful permanent resident abuser. A self-petition may be filed if the marriage was terminated (by divorce or the abusive spouse's death) within the two years prior to filing. A self-petition may also be filed if the marriage was not legitimate because of the bigamy of the abusive 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.

  • Considered a person of good moral character.

  • Must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.

  • Have resided with the abusive spouse

 

ELIGIBLITY REQUIRMENTS FOR A CHILD

  • Must qualify as the child of the abuser as "child" is defined under immigration law (under 21 years old and unmarried).

  • Were the child of an LPR or U.S. resident abuser who lost legal status as a result of domestic violence.

  • Have been abused in the U.S. or, if parent was a U.S. government employee, were abused while abroad.

  • Have resided with the abusive parent.

  • Must provide evidence of good moral character if over the age of 14.

 

ELIGIBILITY REQUIREMENTS FOR A PARENT

  • Must have been the parent of a son or daughter who is a U.S. citizen (or who lost or renounced their U.S. citizenship status related to domestic violence, or died, within two years prior to filing).

  • Have been abused by a U.S. citizen son or daughter.

  • Have resided with the abusive son or daughter.

  • Must provide evidence of good moral character.

 

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. Changes in the law allow for the marriage to have been terminated within two years prior to the date of filing (with some restrictions).

 

Q. Can a divorced spouse seek relief through self-petitioning? 

 

A. Yes, a divorced spouse may seek relief only in certain circumstances, such as when the marriage was terminated 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. 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 three 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.