Self Petition for LPR Status by Battered Spouse and Children

            It is no secret that marrying a U.S. citizen is a fast way to obtain a green card.  An application for legal status based on marriage to a U.S. citizen does not require an allocation of visa number because the foreign spouse is considered an “immediate relative.”  Over 400,000 U.S. citizens and lawful residents marry foreign nationals and file green card petitions on their behalf every year.  However, there are many pitfalls and issues relating to marriage petitions.  For example, 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.  What if foreign national is separated or divorced from an abusive petitioner before his or her green card application was approved? 

            Under the Violence Against Women Act (VAWA) passed by Congress in 1994, the spouses and children of U.S. 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 are eligible?

1)     Spouse: You may self-petition if you are a battered spouse married to a U.S. citizen or lawful permanent resident.

2)     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.

3)    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.

Both males and females may self-petition.  Children (under 21 years of age and unmarried) of the above categories can also be included on the petition as derivative beneficiaries. 

Requirements for Self-Petitions

            Initially, the self-petitioner must have entered into a valid marriage with the USC/LPR spouse in good faith, but not solely for the purposes of obtaining legal status.  The self-petitioner will continue to maintain eligibility even if the marriage was subsequently void for legal reasons such as bigamy or if the abusive spouse died within the past two years or lost or renounced his/her citizenship or LPR status due to abuse.  The original regulations require that a self-petition must be filed while the couple is still married.  Subsequently, the law was changed to allow self-petitions to be filed within two years of the termination of the marriage if the self-petitioner can demonstrate that the termination was connected to battering or extreme mental cruelty.

            Further, such abuse must have occurred in the U.S. unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States.  The self-petitioner 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.  Finally, the person must establish that he or she is a person of good moral character.

Evidentiary Proof

            The self-petitioner must provide any and all credible evidence to support her claim.  However, it is understandable that an abused spouse sometimes may not be able to provide all the supporting documentation to the government.  Additionally, because this self-petitioning procedure allows the otherwise ineligible foreigners to apply for a green card, it can be abused by some foreign nationals who have not indeed been battered or abused.  In fact, our law office has assisted USC/LPR spouses who were shamed by these foreign spouses who married them for the sole purpose of getting a green card.  These foreigners then left their spouses, sometimes even before they were granted legal status, and alleged abuse.  These concerns make this kind of petition difficult to prove. 

            Required documentation includes evidence of the marriage and relationship; evidence of separation and/or termination of the marriage;  evidence of courtship and co-habitation such as joint accounts, lease, ownership of property, utilities, etc. ; evidence of abuse such as police reports, court orders, and affidavits executed by relatives, friends, social relatives, etc., psychiatric and medical reports; birth certificates of any children and any other evidence of hardship;  evidence of good moral character including local police clearance, state-issued criminal background check, etc.  All these documents should be submitted with a Form I-360 petition. 

Benefits of self-petition

            The USCIS reviews each petition initially to determine whether the self-petitioner has addressed each of the requirements listed above and has provided sufficient supporting evidence. This is called a prima facie determination.  After a prima facie determination was made, 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.

            If the self-petition is approved, the government 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 initiate removal (deportation) proceedings against the self-petitioner.   Self-petitioners and their derivative children in deferred action are eligible to apply for employment authorization.

            Most importantly, successful self-petitioners who qualify as immediate relatives of U.S. citizens (spouses and unmarried children under the age of 21)  may apply for LPR status immediately by filing the Form I-485 petition. Self-petitioners who require a visa number to adjust must wait for a visa number to be available before filing the Form I-485. If there was a visa petition filed previously by the abusive spouse, the self-petitioner may also recapture any priority date established by this earlier petition.

Denied Petition

            A battered spouse who does not meet the self-petitioning requirements may be eligible for cancellation of removal. 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 before 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.  If an application is denied, the self-petitioner may still appeal the decision to the AAU unit of the USCIS in Washington, D.C.