Immigration Benefits for Battered Spouses, Parents, and Children

The legal term “domestic violence” refers to crimes of violence committed by:

•  a current or former spouse of the victim,
• a person with whom the victim shares a child in common,
• a person who is cohabitating with or has cohabitated with the victim as a spouse,
• a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction where the violence occurs, or
•  any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.

Domestic violence includes, but is not limited to:

• acts of physical violence,
• forced sexual acts,
• child abuse, or
• mental or emotional cruelty.

Domestic violence occurs among all national, ethnic and social groups. While most recorded incidents of domestic violence involve men abusing women or children, men can also be victims of domestic violence.

Immigrants are particularly vulnerable to domestic violence because many do not speak English, are often separated from family and friends, and may not understand the laws of the United States. For these reasons, immigrants are often afraid to report acts of domestic violence to the police or to seek other forms of assistance. Such fear causes many immigrants to remain in abusive relationships.

Domestic violence may range from “punishment” from the U.S. citizen spouse for any transgressions (either real or imagined) to forms of intimidation, isolation and control exerted by the U.S. citizen spouse on the immigrant.

Intimidation and control can take the form of not allowing any access to the immigrant’s own finances (or those allegedly shared by the couple), restricting access to everyday necessities (such as food or medical services) or threatening to take or deport the immigrant’s child (either a child of the marriage to the U.S. citizen or a child from a prior relationship).

Isolation may include preventing attendance at worship services for the immigrant’s chosen religion and monitoring or restricting the immigrant’s communication with others (family, neighbors, or others in his or her national origin or ethnic group). The means of prevention are not always as direct as physically restraining the immigrant.

Other more subtle forms of abuse can be employed, such as the use of degrading and insulting language, berating of the immigrant’s culture, insulting the immigrant’s appearance or intelligence in an effort to erode his or her self-esteem and sense of self-worth, thus making the immigrant completely dependent upon his or her U.S. citizen spouse.

All people in the United States (regardless of race, color, creed, sex, age, national origin, citizenship status, or ethnic background) are guaranteed basic protections under the law. Domestic violence is illegal in the United States. All spouses of U.S. citizens are entitled to protection from domestic violence.

Immigrant victims of domestic violence may seek the protection of law enforcement. They may also seek orders of protection, abuse prevention orders or restraining orders against their U.S. citizen abusers.

Abusive U.S. citizens will often threaten their immigrant spouse with deportation in an attempt to prevent their immigrant spouses from calling the police or from otherwise seeking legal protection from the domestic violence.

 Please note that seeking law enforcement protection from domestic violence cannot be the basis of termination of your immigration status. You will not be deported for being the victim of domestic violence.

In the United States, parents are required to provide financial support for their children. In the event of separation, you may be entitled to child support from your child’s other parent. You may wish to contact a lawyer or voluntary help agency for additional information on how to obtain this support.

Immigrants cannot receive immigration benefits if they knowingly enter into a marriage for the purpose of evading immigration laws or solely for an immigration benefit. Conviction for marriage fraud can involve imprisonment for up to five (5) years and fines up to $250,000 (U.S. currency). Immigrants who commit marriage fraud may be removed from the United States and may be permanently barred from future immigration benefits in the United States.

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.

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.

To self-petition, you must file USCIS Form I-360 (Petition for Amerasian, Widow(er), or Special Immigrant) and include all supporting documentation. You should keep a copy of everything you submit, including the application and all accompanying documents, in addition to the proof of mailing.

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. 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 USCIS 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, USCIS 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 USCIS will not initiate removal (deportation) proceedings against the self-petitioner. Deferred action decisions 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.

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.

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 USCIS. 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. In addition, if you are a battered spouse or child with conditional permanent resident status, additional applications will need to be filed.

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.

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.

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.

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.

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.