Arkansas & U.S. Codes Related
to Domestic ViolenceImmigrant Information
The Violence Against Women Act (“VAWA”) provides two different methods for abuse survivors to become a Lawful Permanent Resident (LPR). The first method is “self-petitioning,” and the second method is a defense to deportation or “cancellation of removal.”
If you are battered or subject to extreme cruelty by a U.S. citizen or lawful permanent resident during marriage, “it is important to know that Self-Petitioning can only be done while a couple is still married. If a divorce takes place, this form of immigration relief is no longer available to the victim. The victim will then only have cancellation of removal as a means of relief.” (Reva Gupta, Policy and Advocacy Coordinator, Illinois Coalition for Immigrant and Refugee Rights)
"Under current law, if a battered immigrant woman called the police and pressed charges against her husband, who is a legal permanent resident, and her husband gets a criminal conviction, he is deportable without any judicial review. Since Immigration is based on sponsors who have to be either legal permanent residents or U.S. citizens, once the husband is deported, the battered woman looses all rights to her basis to immigrate because she is no longer related to someone who is a legal permanent resident or a U.S. citizen." (Reva Gupta, Policy and Advocacy Coordinator, Illinois Coalition for Immigrant and Refugee Rights)
How Do I Apply for Immigration Benefits as a Battered Spouse or Child?
http://uscis.gov/graphics/howdoi/battered.htm
Background
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. 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 the 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. Victims of domestic violence should know that help is available to them through the National Domestic Violence Hotline on 1-800-799-7233 or 1-800-787-3224 [TDD] for information about shelters, mental health care, legal advice and other types of assistance, including information about self-petitioning for immigration status.
What is the Legal Foundation?
The Immigration and Nationality Act (INA) is the law that governs immigration in the United States. The Violence Against Women Act (VAWA) provisions relating to immigration are codified in section 204(a) of the INA. Rules published in the Federal Register explain the eligibility requirements and procedures for filing a self-petition under the VAWA provisions. These rules can be found in the Code of Federal Regulations at 8 CFR § 204. The Battered Immigrant Women Protection Act of 2000 (BIWPA) made significant amendments to section 204(a) of the INA. Self-petitions may be filed according to the amended requirements but adjudication may be delayed until rules are published.
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. For more information, please see How Do I Bring My Child to Live in the United States?. 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.
Forms are available in person at a USCIS office, by calling 1-800-870-3676, or by submitting a request through our forms by mail system. For further information on filing fees, please see USCIS filing fees, fee waiver request procedures, and the INS fee waiver policy memo. Please see our USCIS Field Offices home page for more information on USCIS service centers.
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 the 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 (Section 501 of the Illegal Immigrant Responsibility and Immigration Reform Act (IIRIRA). 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. For more information on work permits, please see How Do I Apply for a Work Permit (Employment Authorization Document)?.
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. Please see How Do I Get an Immigrant Visa Number? and How Do I Become a Permanent Resident While in the United States? for more information. In addition, if you are a battered spouse or child with conditional permanent resident status, please see How Do I Remove the Conditions on Permanent Residence Based on Marriage?.
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.
How do I File an Appeal if My Application is Denied?
If your application is denied, the denial letter will tell you how to appeal. Generally, you may file a Notice of Appeal along with the required fee at the Vermont Service Center within 33 days of receiving the denial. Once the fee is collected and the form is processed at the Service Center, the appeal will be referred to the Administrative Appeals Unit in Washington, D.C. Sending the appeal and fee directly to the AAU will delay the process. For more information, see How Do I Appeal?. Please click here for more information on USCIS offices.
Can Anyone Help Me?
If advice is needed, you may contact the USCIS District Office near your home for a list of community-based, non-profit organizations that may be able to assist you in applying for an immigration benefit. Please see our USCIS field offices home page for more information on contacting USCIS offices. In addition, please see our Web page that provides information on free legal advice.
Victims of domestic violence should know that help is also available to them through the National Domestic Violence Hotline on 1-800-799-7233 or 1-800-787-3224 [TDD] for information about shelters, mental health care, legal advice and other types of assistance, including information about self-petitioning for immigration status.
Frequently Asked Questions (Immigration)
Q. Can a man file a self-petition under the Violence Against Women Act?
A. 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.
Q. Must the self-petitioner remain married to the abusive spouse until the self-petition is approved?
A. 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.
Q. Can a divorced spouse seek relief through self-petitioning?
A. 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.
Q. 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. 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. Please see How Do I Get an Immigrant Visa Number? for more information.
Background On The Battered Immigrant Women Protection Act Of 1999 H.R. 3083
IMMIGRANT WOMEN: Fact Sheet
http://www.nowldef.org/html/issues/imm/factsh.shtml
The Battered Immigrant Women Protection Act of 1999 H.R. 3083 sponsored by Reps. Schakowsky (D-IL), Morella (R-MD), and Jackson-Lee (D-TX) continues the work that began with the passage of the first Violence Against Women Act in 1994. Prior to VAWA 1994, immigration laws ensured that abusive citizens and permanent residents had total control over their spouses immigration status. As a result, battered immigrant women and children were forced to remain in abusive relationships, unable to appeal to law enforcement and courts for protection for fear of deportation. VAWA 1994 immigration provisions provided a remedy by allowing battered immigrants to file their own applications for immigration relief without the cooperation of their abusive spouse or parent, enabling them to flee the violence and find safety.
Despite the successes of the immigration provisions of VAWA 1994, subsequent immigration reform bills drastically reduced access to VAWA immigration relief for battered immigrants. VAWA 1999 seeks to restore and expand access to a variety of legal protections for battered immigrants so they may flee violent homes, obtain court protection, cooperate in the criminal prosecution of their abusers, and take control of their lives without the fear of deportation.
The Battered Immigrant Women Protection Act of 1999 H.R. 3083 (Reps. Schakowsky (D-IL), Morella (R-MD), and Jackson-Lee (D-TX) addresses:
VAWA Restoration Act: This section allows battered immigrant women and children to obtain permanent immigration status without leaving the U.S. Under current immigration laws, many battered immigrants will be forced to leave the U.S. to obtain their lawful permanent residence. Traveling outside the U.S. deprives these women of the protection provided by courts, legislation, custody decrees, and law enforcement. This section allows battered women to safely obtain immigration status in the U.S. This section allows battered immigrant women placed in immigration proceedings to apply for cancellation or suspension, restoring them to the legal relief they were granted under VAWA in 1994. Additionally, this section exempts VAWA applicants from the cancellation removal cap and allows battered immigrants to file motions to reopen their immigration case beyond the ninety day limitation.
Problems with VAWA Implementation: This section grants battered immigrants access to information about their abuser's immigration status that they need to file under VAWA immigration relief. Additionally, this section ensures that changes in the abuser's citizenship or immigration status will have either a positive effect or no effect on a battered woman's application for immigration relief. Likewise, the abuser's deportation or death will not bar the battered immigrant from applying for relief. This section also requires INS to adjudicate pending family-based visa applications without the abuser when credible evidence of abuse is presented to the INS and allows remarriage of battered immigrants after their self-petition has been approved.
Waivers for VAWA Eligible Applicants: This section grants the Attorney General the discretion to waive certain bars to immigration relief and grounds of deportation for qualified VAWA applicants. Circumstances for the waiver include women who: acted in a criminal manner in self-defense; were convicted of violating a protection order issued to protect themselves which should not have legally been enforced against them; acted out of fear or under the duress of their abuser. This section also exempts battered immigrants from certain other immigration violations that would bar them from VAWA immigration relief. This section removes barriers to VAWA relief which were newly imposed by post-VAWA immigration bills.
Physical Presence Waiver: A VAWA applicant must be continuously present in the US in order to obtain VAWA status in proceedings. An abuser who wishes to undermine the victim's cooperation with authorities in his criminal prosecution for domestic violence need only remove the victim from the U.S. for a certain period of time to render her ineligible for VAWA immigration relief in proceedings. This section allows the Attorney General to waive certain breaks in continuous presence for humanitarian purposes when the applicant has been a victim of domestic violence.
Improved Access to VAWA: This section removes the U.S. residency requirement, granting access to VAWA protection to abused wives and children of U.S. military, U.S. government workers and other U.S. citizens and lawful permanent residents residing abroad. This section also deletes the extreme hardship requirement, which impedes access to VAWA for many unrepresented victims. It allows children, who are included in their mother's VAWA petition when they are under twenty-one, to receive their green cards, along with their mother, after turning twenty-one. It also allows VAWA applicants under twenty-one years old to include any children they may have in their self-petition or cancellation application. VAWA self-petitioning would also be available to victims who file within two years after divorce from their abuser, death or loss of legal immigration status of their abusive spouse or parent. This section also expands access to VAWA self-petitioning to certain other needy immigrants battered by family members.
Improved Access to VAWA Status in Immigration Proceedings (Cancellation of Removal): This section expands access to VAWA status in immigration proceedings to: victims of elder abuse, spouses married to bigamists, abused sons and daughters over 21 years old, and abused spouses and children living abroad who are married to or are the children of citizens or resident abusers. This legislation allows child abuse victims filing as minors, sons or daughters to include any children they may have cancellation cases. It also provides battered immigrants with the option of including children in their VAWA cancellation application.
Good Moral Character: This section creates a discretionary waiver for good moral character determinations for VAWA self-petitioners, VAWA cancellation, and VAWA suspension of deportation cases. Waivers are permitted when there is a connection between the abuse and the commission of, arrest for, conviction of, or plea to a crime.
Battered Immigrant Women's Economic Security Act: Battered immigrants who leave their abusers often sever ties with their prime source of economic support. Congress offered battered immigrants with pending or approved cases before INS access to immigration relief, work permits, and some public benefits. This section addresses gaps, errors and oversights in current legislation that impede battered immigrant women's ability to flee violent relationships and survive economically. This section ensures that battered immigrants with pending immigration applications are able to access public benefits, Food Stamps, SSI, and housing.
Access to Shelter Services and Legal Representation: This section grants VAWA eligible battered immigrants access to funds from the Legal Services Corporation to be used in their protection order and immigration cases. It also allows programs to use private funds to represent any battered immigrant who qualifies for relief under state domestic violence laws. Legal Services attorneys provide these immigrants with access to the legal system enabling them to flee violent homes while gaining economic security. This section also clarifies that the definition of "underserved populations" under VAWA clearly covers immigrants. It specifically allows VAWA and other domestic violence grant funds, including civil legal assistance funds, to be used for legal and social service assistance to battered immigrants and it requires a report to be submitted to Congress detailing how funds are being used to serve underserved populations.
VAWA Training: This section makes grant money available for training of federal and state civil and criminal judges, including immigration judges, INS officers, the military and other justice system personnel dealing with issues affecting battered immigrants. There have been increased reports of judges, prosecutors and police who are inquiring into the immigration status of domestic violence crime victims who call them for help. When this happens, battered immigrants are unwilling to call the police or seek protection orders. Instead they are forced to remain with their abusers and continue suffering ever increasing violence. This training will enable judicial and law enforcement system employees to restrain from arbitrarily inquiring into the immigration status of crime victims and refocuses their attention toward the perpetrators of domestic violence.
Protection for Certain Crime Victims Including Crimes Against Women: This section allows victims of rape, torture, incest, battery or extreme cruelty, sexual assault, female genital mutilation, forced prostitution, trafficking, being held hostage, or any other violent crime to obtain a non-immigrant visa. The victim can self-petition for a visa but will need to submit an affidavit from a law enforcement officer, prosecutor or state enforcement agency verifying that they have information that has assisted or would assist in the investigation or prosecution of a crime. By providing temporary legal status to aliens who have suffered severe victimization, this provision will strengthen the ability of law enforcement agencies to investigate and prosecute cases of trafficking aliens and cases of domestic violence while protecting victims of such offenses.
Nicaraguan and Central American Relief Act (NACARA), Haitian Refugee Immigration Fairness Act, and Cuban Adjustment: Under these provisions, battered spouses and children of NACARA petitioners, Haitian Refugee Immigration Fairness Act petitioners and Cuban adjustment applicants may self-petition for relief. Moreover, this legislation removes the requirement that battered immigrant spouses and children of Cuban Adjustment applicants must be living with the Cuban Adjustment applicant at the time of filing.
For more information, contact Leslye Orloff or Janice Kaguyutan at the Immigrant Women Program of NOW Legal Defense and Education Fund (202) 326-0040 tel., (202) 589-0511 fax.
Arkansas Resources for the Battered Immigrant Woman
Catholic Charities - Immigration Services & Refugee Resettlement
2022 Sunset Ave.
Springdale, AR 72762
(479) 927-1996
(479) 927-2979
mgoodwin@dolr.org
National Resources for the Battered Immigrant Woman
Family Violence Prevention Fund
Phone: 415-252-8900
Website: http://www.fvpf.org
National Immigration Project of the National Lawyers Guild
Phone: 617-227-9727
FAX: 617-227-5495
Website: http://www.nlg.org/nip/homepage.html
National Network for Immigrant And Refugee Rights
Phone: 510-465-1984
FAX: 510-465-1885
E-mail: nnirr@igc.org
Website: http://www.nnirr.org/
National Immigration Law Center
Phone: 213-938-6452
Fax: 213-964-7940
Email: neville@nilc.org
Website: http://www.nilc.org
National Immigration Forum
Phone: 202-544-0004
Fax: 202-544-1905
Website: http://www.immigrationforum.org/
Center For Human Rights And Constitutional Law
Phone: 213-388-8693
Fax: 213-386-9484
E-mail: pscyey@earthlink.net