VAWA Self-Petitioning for Battered Spouses

vawa self-petitioning for battered spouses

 

Introduction: Filing a Form I-360 VAWA Self-Petition as Abused Spouse of U.S. Citizen or LPR

The Immigration and Nationality Act (INA) allows for the alien spouse of a U.S. citizen or lawful permanent resident (LPR) to file a Violence Against Women Act (VAWA) self-petition for permanent resident status if he or she or his or her child was battered or subjected to extreme cruelty by the U.S. citizen or LPR spouse. In this article, we will discuss the eligibility requirements for filing a Form I-360 VAWA self-petition as an abused spouse or on behalf of an abused child. To learn about special considerations for filing for adjustment of status on the basis of an approved Form I-360 petition as a VAWA self-petitioner, please read our full article [see article].

To learn about other scenarios in which a noncitizen may file a VAWA self-petition, please refer to the following list:

Child of abusive U.S. Citizen or LPR parent [see article];
Parent of abusive U.S. citizen son or daughter [see article];
Cuban Adjustment [see section];
VAWA cancellation of removal [see article].

Statutory Background

The provisions for VAWA self-petitioning spouses of U.S. citizens are found in section 204(a)(1)(A)(iii) of the INA and the provisions for VAWA self-petitioning spouses of LPRs are found in section 204(a)(1)(B)(ii) of the INA. The statutory requirements are nearly identical save for the status of the spouse.

Qualifying Abuse Victim

Section 204(a)(1)(A)(iii)(I)(aa)-(bb) sets forth the requirements for eligibility for filing a Form I-360 as the victim of “battery or extreme cruelty” by a U.S. citizen spouse. Section 204(a)(1)(B)(ii)(I)(aa)-(bb) sets for the parallel requirements for the spouse of an LPR. The following will combine the two provisions:

Alien entered into marriage with U.S. citizen/LPR spouse in good faith; or
Alien had the intent to marry the U.S. citizen/LPR in good faith (relating to situation where marriage would have been valid if not for the bigamy of the U.S. citizen/LPR); and
During the marriage or the relationship intended by the alien to be a legal marriage, the alien or a child of the alien has been battered or has been the subject of extreme cruelty perpetrated by the alien's spouse or intended spouse.

If the alien or his or her child is the subject of battery or extreme cruelty in a sham marriage, the alien will not be eligible to self-petition for immigration status. Furthermore, the alien or a child of the alien must have been subjected to battery or extreme cruelty by the U.S. citizen or LPR spouse in order to file a VAWA self-petition. Under section 101(b)(1)(E) of the INA, an adopted child who was battered or subjected to extreme cruelty by a U.S. citizen or LPR parent or member of such parent's household does not need to meet the two-year residency requirement in order to qualify as an adopted child.

Additionally, section 204(a)(1)(A)(v)(I)-(II) permits the spouse or intended spouse of a U.S. citizen living abroad who is either an employee of the U.S. government or a member of the uniformed services to file a VAWA self-petition under the same rules so long as some of the abuse took place in the United States. Section 204(a)(1)(B)(iv)(I)-(II) contains the same provisions for the spouse or intended spouse of an LPR living abroad.

Relationship to Abusive Spouse

Under sections 204(a)(1)(A)(iii)(II)(aa)(AA) and 204(a)(1)(A)(iii)(II)(aa)(AA), an alien who remains married to his or her abusive U.S. citizen or LPR spouse will be eligible to file a Form I-360 as a VAWA self-petitioner.

The “intent to marry” provision refers to a situation wherein the alien legitimately believes that he or she entered into a bona fide marriage with a U.S. citizen or LPR, and that the marriage would have been legitimate if not for the bigamy of the U.S. citizen or LPR. This is defined where the apparent spouse is a U.S. citizen in 204(a)(1)(A)(iii)(II)(aa)(BB) and where the apparent spouse is an LPR in 204(a)(1)(B)(ii)(II)(aa)(BB).

Under certain circumstances, an alien who was the bona fide spouse of a U.S. citizen or LPR within the 2 years prior to the filing of the petition may file a VAWA self-petition. These situations are listed in sections 204(a)(1)(A)(iii)(II)(CC)(aaa)-(ccc) and (a)(1)(A)(ii)(II)(CC)(aaa)-(bbb). As we will discuss, there is one provision that exists for the former spouse of an abusive U.S. citizen that does not exist for the spouse of an LPR. The following are the situations where a VAWA self-petitioner need not be married to the U.S. citizen/LPR spouse:

U.S. citizen spouse (not LPR) died within the past 2 years;
U.S. citizen/LPR spouse lost or renounced citizenship/LPR status within the past 2 years related to an incident of domestic violence; or
Marriage to U.S. citizen/LPR was legally terminated within the past 2 years and petitioner demonstrates a connection between the legal termination of the marriage and the battering or extreme cruelty by the U.S. citizen/LPR spouse.

First, it is important to note that the text of the relevant regulations, which we will cover in the next section, do not allow for VAWA self-petitioning in the event of the termination of the marital relationship or loss of status of the abusive spouse. However, the controlling law is ultimately the statute, and therefore an alien will be able to self-petition in any of the above scenarios. The United States Citizenship and Immigration Services (USCIS) stated in a Q&A that “USCIS is obligated to follow the statute, and you are no longer required to be married to your abusive spouse at the time of filing” [link].1

While the statute permits the abused spouse of a U.S citizen to self-petition in the event of the death of the U.S. citizen spouse, no parallel provision exists in the case of the death of an abusive LPR spouse. This is recognized in the Adjudicator's Field Manual (AFM) at 21.14(q)(2)(A): “[T]his provision is only applicable to the spouses or children of U.S. citizens.” Interestingly, some government resources such as the USCIS website are not clear that the statute and USCIS agency guidance only permit self-petitioning in the case of the death of the abusive spouse when the petitioner is the spouse of a U.S. citizen [link].2

The following rules apply regardless of whether the abusive spouse was a U.S. citizen or an LPR.

If the abusive spouse renounced status within the previous 2 years, the alien may file self-petition or have such a petition approved so long as it is demonstrated that the loss or renunciation of status was connected to an incident of domestic violence. AFM 21.14(q)(2)(B) requires that the self-petitioner demonstrate “[t]he requisite causal relationship and the incident of domestic violence.”

In the event of the termination of the marriage through any other means but the death of the abusive spouse, the self-petitioner must demonstrate that the termination of the marriage was due to the battery or extreme cruelty by the U.S. citizen or LPR spouse. Sections 204(a)(1)(A)(vi) and 204(a)(1)(B)(v) state that divorce or any change in status of the abuser (including denaturalization, renunciation of citizenship, loss of LPR status, or death) t after the petition is filed will have no adverse effect on the approval of the petition or the status of the approved petition. AFM 21.14(q)(2)(C) states unequivocally that a divorce that occurs after the self-petition has been filed “shall not adversely affect the approval of the petition.”

In Moreno-Gutierrez v. Napolitano, 794 F.Supp.2d 1207, 1210-11 (D. Colo. 2011) [PDF version], a district court held that the two-year deadline for filing in the above situations may be equitably tolled. However, this position is not national precedent and the administrative courts have generally declined to adopt it in subsequent unpublished decisions.

Other Statutory Considerations

In order to have an approvable VAWA self-petition, the petitioner must be able to demonstrate Good Moral Character (GMC) [see article]. This requirement is found in sections 204(a)(1)(A)(iii)(II)(bb) and (a)(1)(B)(ii)(II)(bb). However, under section 212(a)(4)(E), VAWA self-petitioners are exempt from the public charge ground of inadmissibility [see article]. A self-petitioner subject to the 3 or 10 year unlawful presence bar may be eligible for a waiver under section 212(a)(9)(C) if he or she can demonstrate a connection between the abuse and the actions that triggered the bar [see article].

Under section 204(a)(1)(A)(iii)(II)(cc), if the alien is petitioning as the abused or battered spouse of a U.S. citizen, he or she must be classifiable as an immediate relative as defined in section 201(b)(2)(A)(i) (or would have been classifiable if not for the bigamy of the intended spouse). Section 204(a)(1)(B)(ii)(II)(cc) requires that an alien petitioning as the victim of an LPR spouse be classifiable as the spouse of an LPR under section 203(a)(2)(A) (or would have been classifiable if not for the bigamy of the intended LPR spouse).

Sections 204(a)(1)(A)(iii)(II)(dd) and (a)(1)(B)(ii)(II)(dd) require that the self-petitioner have resided with his or her U.S. citizen or LPR spouse or intended spouse. We will review the rules for meeting this requirement and all of the other evidentiary requirements in the next section.

Under 8 C.F.R. 204.2(h)(2), if the self-petitioner is already the beneficiary a Form I-130 filed by the abusive spouse, he or she may transfer that priority date to the Form I-360.3 The validity of the original petition is irrelevant.

Implementing Regulations and Application Process

The statutes for VAWA self-petitioner spouses are implemented through regulations found in 8 C.F.R. 204.2. Additionally, USCIS has published important agency memoranda discussing how it adjudicates VAWA self-petitions for spouses.

Demonstrating Spousal Relationship and Bona Fide Marriage

8 C.F.R. 204.2(c)(1)(ii), in accordance with the statute, explains that the termination of a marriage after the petition has been filed will have no bearing on the decision to approve or deny the Form I-360. However, it is important to note that the petitioner may not remarry during the adjudication of the petition. The bar on remarriage during the adjudication of the position was upheld by a federal district court in Delmas v. Gonzalez, 422 F.Supp.2d 1299 (S.D. Florida, 2005) [PDF version]. However, the petitioner may remarry after the approval of the Form I-360 without any bearing on the approved petition.

8 C.F.R. 204.2(c)(2)(ii) requires that the petitioner submit evidence that he or she is (or was, per statute) married to the abuser. The regulation states that a marriage certificate issued by civil authorities and proof of the termination of all prior marriages (if applicable) of the petitioner and the abusive spouse may serve as primary evidence. If the petition is based upon abuse to the petitioner's child, the self-petition should include the child's birth certificate or other evidence “showing the relationship between the petitioner and abused child.”

8 C.F.R. 204.2(c)(2)(iii) requires that the petitioner demonstrate that he or she and the abuser “have resided together in the United States.” This provision is part of demonstrating that the marriage was entered into in good faith. Furthermore, the self-petitioner must demonstrate that he or she resides in the United States when the petition is filed. The regulation suggests that the following are examples of evidence that may, in the aggregate, satisfy the regulatory provision:

Employment records;
Utility receipts;
School records;
Hospital or medical records;
Birth certificates of children born in the United States;
Deeds;
Mortgages;
Rental records;
Insurance policies;
Affidavits or any other type of credible evidence.

8 C.F.R. 204.2(c)(1)(ix) requires that the petitioner demonstrate that the marriage was entered to in good faith. This means that the marriage to the abuser was not entered into for the “primary purpose of circumventing the immigration laws.” 8 C.F.R. 204.2(c)(2)(vii) states that evidence of a good faith marriage may include, but is not limited to:

Proof that one spouse has been listed as the other's spouse on insurance policies, property leases, income tax forms, or bank accounts;
Testimony regarding courtship, wedding ceremony, or shared residence and experiences;
Birth certificates of children born to the abuser and spouse;
Police, medical, or court documents providing information about the relationship;
Affidavits of persons with personal knowledge of the relationship; and
Other credible evidence.

Intended Marriages

A legacy Immigration and Naturalization Service (INS) memorandum set forth the requirements for demonstrating eligibility as a self-petitioner who believed that she entered into a bona fide marriage and that the marriage was only not legitimate due to the bigamy of his or her abusive apparent spouse [see memo].4 The memo requires that the petitioner demonstrate that:

1. He or she married a U.S. citizen or LPR who he or she believed was free to enter into a marriage;
2. A marriage ceremony was actually performed; and
3. The requirements for the establishment of a bona fide marriage were otherwise met.

The emphasis is on determining whether the petitioner legitimately believed that he or she was entering into a legitimate marriage and had the intent of entering into said marriage in good faith. As is the case with a legitimate marriage, “[p]rimary evidence shall be a marriage certificate issued by civil authorities in the United States or abroad.” The petitioner must demonstrate the lawful termination of any of his or her prior marriages to entering into an apparent marriage with the intended spouse. With regard to establishing self-petitioning eligibility, all of the other requirements are the same (e.g., the petitioner or his or her child must have been battered or subjected to extreme cruelty by the apparent spouse, he or she must have resided with the abuser in the United States, he or she must be a person of GMC).

Evidence of Battery or Extreme Cruelty

The petitioner must prove that he or she or his or her child was subjected to battery or extreme cruelty by the abusive spouse. 8 C.F.R. 204.2(c)(1)(vi) defines “was battered by or was the subject of extreme cruelty” as including:

Being the victim of any act or threatened act of violence (including any forceful detention which results in physical or mental injury);
Psychological or sexual abuse or exploitation (including rape, molestation, incest (if victim is a minor), or forced prostitution shall be considered acts of violence);
Other acts of violence that do not themselves qualify but in the aggregate, constitute an “overall pattern of violence.”

Of note, the battery or extreme cruelty must have taken place during the petitioner's marriage to the abuser.

8 C.F.R. 204.2(c)(2)(iv) states that evidence of abuse may include (but is not limited to):

Affidavits from law enforcement, medical personnel, school officials, clergy, social workers, or other social service agency personnel;
Documents relating to orders of protection;
Evidence that victim sought safe haven;
Photographs of injured petitioner supported by affidavits;
Other credible evidence.

Furthermore, “[d]ocumenatry proof of non-qualifying abuses may only be used to establish a pattern of abuse and violence and to support a claim that qualifying abuse may have occurred.”

Extreme Hardship

8 C.F.R. 204.2(c)(1)(viii) requires that the petitioner must establish that “extreme hardship” would occur to the petitioner or to his or her child(ren) in the event that he or she were to be removed. 8 C.F.R. 204.2(c)(2)(vi) suggests that evidence of extreme hardship may include:

Affidavits;
Birth certificates of children;
Medical reports;
Protection orders and other court documents;
Police reports; and
Other relevant credible evidence.

Petitioners are encouraged to submit as much credible evidence as possible to establish extreme hardship.

Good Moral Character

8 C.F.R. 204.2(c)(1)(viii) requires that the petitioner demonstrate that he or she was a person of GMC in accordance with section 101(f) of the INA. However, considering the circumstances that would lead someone to file a VAWA self-petition, the regulation allows for “[e]xtenuating circumstances may be taken into account if the person has not been convicted of an offense or offenses but admits to the commission of an act or acts that could show a lack of GMC…” The regulation cites as an example a petitioner who is “subjected to abuse in the form of forced prostitution” provided that he or she has not been convicted for the commission of the offense(s) in a court of law.

8 C.F.R. 214.2(c)(2)(v) states that the primary evidence of GMC is the self-petitioner's affidavit. Furthermore, the affidavit should be accompanied by a:

Local police clearance or a state-issued criminal background check from each locality or state in the United States in which the self-petitioner resided for six or more months during the previous 3 years preceding the self-petition;
The same evidence submitted by the appropriate authority for any places where the petitioner resided for six or more months in the preceding 3 years abroad.

If such evidence is not available for some or all jurisdictions in which the petitioner resided for at least six months within the previous 3 years, he or she may “include an explanation and submit other evidence with his or her affidavit.” Other evidence such as affidavits from responsible persons may be considered.

Derivatives and Other Considerations

8 C.F.R. 204.2(c)(1)(iii) explains that if the self-petitioner files as the abused spouse of an LPR, and the LPR is naturalized during the adjudication, the petitioner will not be automatically upgraded to immediate relative status. However, the petitioner may file a new self-petition for immediate relative classification so long as he or she is eligible to do so.

8 C.F.R. 204.2(c)(4) explains that a child who is accompanying or following-to-join the self-petitioner may be included on the same petition and have the same preference and priority date as the petitioner. The child must be unmarried, less than 21 years old, and otherwise qualify as the petitioner's child under section 101(b)(1)(F). Under section 204(a)(1)(D)(i)(III), a derivative child “shall be considered a VAWA self-petitioner with the same priority date as that assigned to the [petitioning parent]” if he or she attains 21 years of age during the adjudication of the petition. This means that the derivative child will retain his or her original priority date upon reaching 21 years of age. Being included as a derivative on a parent's petition does not preclude the child from self-petitioning if he or she is eligible to do so.

The Fifth Circuit held in Khanh Nhat Thuy Le v. Holder, 732 F.3d 425 (5th Cir. 2013) [PDF version] that a K1 visa beneficiary who did not marry his or her petitioning spouse is ineligible to file a VAWA self-petition based on a marriage to someone else. The Tenth Circuit held in Schmitt v. Maurer, 451 F.3d 1092 (10th Cir. 2006) [PDF version] that an alien who entered the United States under the Visa Waiver Program can be removed from the United States for an overstay not withstanding a pending self-petition (although note that section 245(c) bar to adjustment for Visa Waiver Program entrants does not apply to VAWA cases).

Adjudication

Under 8 C.F.R. 204.2(c)(3)(i), the self-petitioner may apply for adjustment of status after the petition is approved so long as an immigrant visa number is available. If the petition is denied, 8 C.F.R. 204.2(c)(3)(ii) allows the petitioner to appeal.

After filing a Form I-130 petition, 8 C.F.R. 204.2(c)(6)(i) states that USCIS will determine whether the petitioner prima facie (on the face) case for eligibility. If the USCIS decides favorably, it will issue a Notice of Prima Facie Case under 8 C.F.R. 204.2(c)(6)(iii). It is important to note that this does not constitute evidence in support of the petition and that the petitioner will still be required to submit all necessary evidence to support his or her eligibility for relief (see 8 C.F.R. 204.2(c)(6)(iv)(A)-(C)).

Conclusion: Filing a Form I-360 VAWA Self-Petition as Abused Spouse of U.S. Citizen or LPR

VAWA self-petitioning for abused spouses of U.S. citizens and LPRs is a valuable form of immigration relief for eligible victims. However, an abuse victim should consult with an experienced immigration attorney to determine the best option for relief. In certain cases, an alternative immigration remedy for a victim of violence may be more appropriate [see category]. If filing a VAWA self-petition is determined to be the best option, an experienced immigration attorney can walk the self-petitioning spouse through each step of the petitioning process.

To learn what happens after a petition is approved, please read our full article [see article].

____________________

  1. USCIS, “Questions and Answers: Battered Spouses, Children and Parents Under the Violence Against Women Act (VAWA),” USCIS, (July 15, 2015), available at https://www.uscis.gov/humanitarian/battered-spouse-children-parents/questions-and-answers-battered-spouses-children-and-parents-under-violence-against-women-act-vawa [link]
  2. USCIS, “Battered Spouse, Children & Parents,” (February 2, 2016), available at https://www.uscis.gov/humanitarian/battered-spouse-children-parents [link]
  3. Memo, Aleinikoff, Exec. Assoc. Comm., Programs HQ 204-P (Apr. 16, 1996)
  4. Memo, Williams, Ex. Assoc. Comm., Field Operations HQADN/70/8 (Aug. 21, 2002)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1066-69, 1110, Print. Treatises & Primers.

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VAWA