Employment Authorization for Certain Abused Nonimmigrant Spouses

 

Introduction

On February 14, 2017, the United States Citizenship and Immigration Services (USCIS) published a FAQ titled “Employment Authorization for Certain Abused Nonimmigrant Spouses” [link]. In this article, we will examine the USCIS's new FAQ as well as reference additional materials related to employment authorization for certain nonimmigrant spouses.

Abused Nonimmigrant Spouse

Overview of the Provision

The statute underlying employment authorization for certain abused nonimmigrant spouses is the Violence Against Women and Department of Justice Reauthorization of 2005. The provision modified section 106 of the Immigration and Nationality Act (INA).

Section 106(a) applies to the nonimmigrant alien spouse admitted in derivative A, E3, G, or H status, who is accompanying or following to join the principal. Specifically, if during the marriage the alien spouse or his or her child is battered or subjected to extreme cruelty by the principal, the Secretary of Homeland Security may authorize the victimized alien spouse to procure employment authorization and engage in employment in the United States.

Section 106(b) makes clear that the statute does not confer any benefits beyond employment authorization.

Eligibility Requirements

The application for employment authorization for an abused nonimmigrant spouse described in section 106 of the INA is filed on the Form I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse. In this section, we will examine the eligibility requirements that an abused spouse must meet in order to have a Form I-765V approved.

First, the applicant must establish that he or she accompanied or followed to join his or her nonimmigrant spouse who was admitted in A, E3, G, or H nonimmigrant status. The applicant must either establish that he or she is currently married to the principal A, E3, G, or H nonimmigrant, or that he or she was married to such a nonimmigrant, and that:

  1. The applicant's spouse died within two years of the filing of the Form I-765V; or
  2. The applicant's spouse lost qualifying nonimmigrant status due to an incident of domestic violence within two years of the filing of the Form I-765V; or
  3. The applicant's marriage was terminated within the two years prior to the filing of the Form I-765V and there is a connection between the termination of the marriage and the battery or extreme cruelty perpetrated by the former spouse.

The applicant filing the Form I-765V must next establish that he or she was last admitted to the United States in A, E3, G, or H nonimmigrant status.

The applicant must establish either that he or she was battered or subjected to extreme cruelty by the qualifying nonimmigrant spouse, or that his or her child was subjected to battery or extreme cruelty by the qualifying nonimmigrant spouse. In order to qualify for relief under section 106 of the INA, the battery or extreme cruelty must have occurred during the marriage and subsequent to admission in A, E3, G, or H nonimmigrant status.

Finally, in order to file an approvable Form I-765V, the petitioner must reside in the United States at the time of filing.

If an individual who files the Form I-765V remarries before final adjudication of the application, it will be denied.

Filing Requirements for the Form I-765V

The Form I-765V must be filed in accordance with the form instructions, which can be found on the USCIS website. Furthermore, applicants must ensure that they use a current version of the Form I-765V. As of February 15, 2017, the USCIS only accepts the 01/19/17 version of the Form I-765V. The FAQ explains that the Form I-765V must be submitted along with the following evidence:

  1. Evidence of the applicant's admission to the United States in A, E3, G, or H nonimmigrant status;
  2. Evidence of the admission of the applicant's principal nonimmigrant spouse's admission into the United States in A, E3, G, or H nonimmigrant status;
  3. Evidence of abuse (e.g., police records, court records, medical records, reports from social service agencies, affidavits, or copies of protective orders);
  4. Evidence of qualifying marital relationship with the principal nonimmigrant spouse;
  5. Evidence of applicant's current residence in the United States;
  6. Two passport-style photographs.

The FAQ notes that, if the applicant cannot provide documentary proof of his or her spouse's nonimmigrant status, the applicant must instead provide identifying evidence. The FAQ explains that such evidence may come in the form of the spouse's name, place of birth, country of birth, date of birth, date of entry into the United States, I-94 number, employer, or other credible evidence. The USCIS will use this information to endeavor to verify the nonimmigrant status of the spouse.

Further Information on Submitting Evidence

Section 106(a) of the INA specifies that applications for relief for abused nonimmigrant spouses will be handled under the procedures that apply to aliens seeking relief under section 204(a)(1)(A)(iii) of the INA. Section 204(a)(1)(A)(iii) contains the statutory provision for VAWA self-petitioning battered spouses. Please see our full article on VAWA self-petitioning for battered spouses to learn about the evidentiary requirements in more detail [see article].

Filing Information

The Form I-765V must be mailed to the USCIS Vermont Service Center in accordance with the form instructions. There is no filing fee for the Form I-765V.

Length of Employment Authorization

The FAQ explains that, if approved, the applicant will be granted employment authorization for a 2-year interval. Employment authorization may be renewed in 2-year intervals. However, in order to be approved for renewal, the applicant must continue to meet the initial filing requirements. Evidence of abuse does not need to be resubmitted in a renewal application.

It is important to reiterate that approval for employment authorization does not change an alien's status or establish eligibility for any other benefit.

Conclusion

An individual who is in the United States in nonimmigrant status and who is battered or subjected to extreme cruelty should consult with an experienced immigration attorney immediately. An experienced immigration attorney will be able to analyze the situation and determine if there may be relief available under the immigration laws. For certain battered nonimmigrant spouses, seeking relief under section 106 of the INA may be an appropriate option. In such cases, an experienced immigration attorney will be able to guide the applicant through the Form I-765V filing process and assist in determining if there may be more long-term forms of immigration relief available.

The FAQ notes that victims of domestic violence may seek assistance through the National Domestic Violence Hotline at 1-800-799-7233 or 1-800-787-3224 (TDD). The hotline provides domestic violence victims with information about shelters, mental healthcare, and legal advice.

To learn more about immigration relief for victims of domestic violence — including forms of relief found in VAWA — please see our website's section on Victims of Violence Immigration [see category].