B
O
C
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. USCIS Form I-130, Petition for
Alien Relative is filed by the USC/LPR, 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?
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:
The self-petitioning child:
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. Self-petitions are filed with the Vermont Service Center and
should be sent by certified return receipt mail (or any other method providing
assurance of receipt). Sending the Form I-360 to any other USCIS office will
delay your application. You should keep a copy of everything you submit,
including the application and all accompanying documents, in addition to
the proof of mailing.
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. To apply, USCIS Form I-765 (Application for Employment
Authorization) should be filed with the Vermont Service Center. Applicants
should indicate that they are seeking employment authorization pursuant to
8 CFR 274a.12(c) (14). The Form I-765 must be filed with a copy of the self-
petitioner's USCIS Form I-360 approval notice.
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
their local USCIS office. 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.
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.
Frequently Asked Questions
Can a man file a self-petition under the Violence Against Women Act?
Yes. 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.
Must the self-petitioner remain married to the abusive spouse until the
self-petition is approved?
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.
Can a divorced spouse seek relief through self-petitioning?
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.
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 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.
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. USCIS Form I-130, Petition for
Alien Relative is filed by the USC/LPR, 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?
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. Self-petitions are filed with the Vermont Service Center and
should be sent by certified return receipt mail (or any other method providing
assurance of receipt). Sending the Form I-360 to any other USCIS office will
delay your application. You should keep a copy of everything you submit,
including the application and all accompanying documents, in addition to
the proof of mailing.
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. To apply, USCIS Form I-765 (Application for Employment
Authorization) should be filed with the Vermont Service Center. Applicants
should indicate that they are seeking employment authorization pursuant to
8 CFR 274a.12(c) (14). The Form I-765 must be filed with a copy of the self-
petitioner's USCIS Form I-360 approval notice.
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
their local USCIS office. 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.
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.
Frequently Asked Questions
Can a man file a self-petition under the Violence Against Women Act?
Yes. 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.
Must the self-petitioner remain married to the abusive spouse until the
self-petition is approved?
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.
Can a divorced spouse seek relief through self-petitioning?
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.
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 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.
BOGLE
OKOYE
CHANG
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VAWA: Battered Spouses, Parents, Children
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