Abused individuals not legally in the U.S.
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. 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 the USCIS. As a result, most battered immigrants are afraid to report the abuse to the police or other authorities. However, individuals living in the U.S., legally or illegally, who are subject to physical abuse or extreme mental cruelty by their U.S. citizen or permanent resident spouse do not have to rely on their U.S. citizen spouses to execute and file paperwork on their behalf in order to be granted permanent residence in the U.S. Such individuals became eligible to start their immigrant processing, regardless of their U.S. citizen spouse's agenda or wishes.
Under the Violence Against Women Act, the spouses and children of United States citizens or lawful permanent residents 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 freedom from the abuser.
To be eligible to file a self-petition, 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.
The basic requirements for a 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.
- A self-petition will 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 self-petition.
The basic requirements for a 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.
If the self-petition is approved, the Service may place the self-petitioner in “deferred action”, if the self-petitioner does not have legal immigration status in the U.S. ‘Deferred action’ means that the Service will not place the applicant in removal (deportation) proceedings.
Some applicants who have an approved petition and are placed in deferred action are also eligible for an employment authorization document.
Self-petitioners who qualify as immediate relatives of U.S. citizens do not have to wait for an immigrant visa number to become available. They may file for lawful permanent residency immediately. However, self-petitioners who require a visa number to adjust must wait for a visa number to be available before filing for their lawful permanent residence card.
It is also important to note that spouses of U.S. citizens who have already obtained their 2 year "conditional green card" based on their happy and "real" marriage also have the option to remove their conditions without the assistance or knowledge of their U.S. citizen spouse. The I-751 waiver petition to obtain a permanent "green card" is an option for applicants who can demonstrate that the marriage was entered into in good faith, however, they are now the victim of physical abuse or extreme mental cruelty.
Although the self-petitioning provisions for victims of domestic violence are contained in the Violence against Women Act (VAWA), they apply equally to men or women.
If you fall into any of the above categories, please make an appointment to discuss your case.