How
to Self-Petition When You are the Victim of Abuse
From Your Spouse
How to self-petition
for US Green Card as a battered spouse
Generally,
U.S. citizens (USC) and Lawful Permanent Residents
(LPRs) file an immigrant visa petition with the Immigration
and Naturalization Service (USCIS) on behalf of a
spouse or child, so that these family members may
emigrate to or remain in the United States. The applicable
form is filed with USCIS by 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 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.
Who is Eligible
for a Green Card as a self-petitioner?
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.
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.
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 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 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.
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 the applicable form
with USCIS. Self-petitioners who require a visa number
to adjust must wait for a visa number to be available
before filing the Form. The wait for visa numbers
can be anywhere from 2-10 years.
NOTE: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. Furthermore,
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.
For more useful
information about filing for a green card yourself
based on having been a battered spouse (wife or husband),
see our page on
frequently asked questions. You can also find
information on our website on the
U Visa (Visa for victims of crimes), the
S Visa (Visa for Informants of crimes), and the
T Visa (Visa for victims of human trafficking).
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