Under U.S. immigration law, a U.S. citizen (USC) or lawful permanent resident (LPR) generally controls the immigration process (green card application) for his/her spouse and children. However, Congress passed legislation known as the Violence Against Women Act (VAWA) to prevent abusive spouses from using their control over the immigration process to further intimidate survivors of domestic/ intimate partner violence. This law allows survivors and their children to self-petition for their green cards with the U.S. Citizenship and Immigration Services (USCIS) without the consent or participation of their spouse. USCIS must keep the entire self-petition process confidential from the abusive spouse.
Intimate partner and domestic violence can make a frightening immigration situation more perilous. There are some steps you can take to get yourself and your family out of these situations and into a safe space.
My abusive spouse is a U.S. citizen/lawful permanent resident and is threatening me about my immigration status. Is there anything I can do about my immigration status?
What are the eligibility requirements for a self-petition?
A person may be eligible for a self-petition if s/he meets the following requirements:
- S/he is currently legally married to a USC or LPR or s/he was the spouse of a USC or LPR within the last two years and the spouse lost status due to an incident of domestic violence (where the spouse was deported) or s/he divorced their USC or LPR spouse not more than two years ago and there is a connection between the divorce and the domestic violence
- S/he entered into the marriage in “good faith,” meaning that the marriage was not entered into solely for immigration purposes;
- S/he resided with the abusive spouse;
- S/he is a person of good moral character; and
- During the marriage, s/he was subject to battery or extreme cruelty
I am a conditional resident whose green card is only valid for two years. My spouse is threatening not to help me remove the conditions on my green card. What can I do?
If your spouse is refusing to help you remove the conditions on your green card, you can apply to remove them on your own without your spouse’s cooperation. This type of petition is known as a battered spouse waiver and can be filed at any time before or, in many circumstances, even after the two- year conditional resident period. You must show that your marriage was in good faith and that you were subjected to battery or extreme cruelty during the marriage.
If my abusive spouse is undocumented or I am not married to my abuser, are there any immigration options available to me as a survivor of domestic/intimate partner violence?
Yes. You may be eligible for U nonimmigrant status. This status allows certain victims of qualifying crimes to obtain work authorization and stay in the United States if they cooperate with local law enforcement (such as the New York City Police Department, the Administration for Children’s Services, the New York Family Court or the District Attorney’s Office) in the investigation or prosecution of the abuser. The law enforcement agency must complete a certification regarding the survivor’s helpfulness in the case. Examples of qualifying crimes include: domestic violence, rape, felonious assault, and trafficking.
To obtain U nonimmigrant status, the survivor must demonstrate that they:
- Has suffered substantial physical or mental abuse as a result of having been a victim of the qualifying crime;
- Is in possession of information about the criminal activity;
- Has been helpful, is helpful or is likely to be helpful to a prosecutor, a judge, or any other state, federal or local authority investigation or prosecuting the criminal activity.
Survivors who obtain U nonimmigrant status are granted work permits and can generally apply for green cards after three years in U nonimmigrant status.
I am a survivor of domestic/ intimate partner violence and am in deportation (removal) proceedings in immigration court. Are there any other options that are available for me to stay in the United States?
If you are in deportation proceedings, you may be eligible for a form of immigration relief known as VAWA Cancellation of Removal. To qualify, you must show that:
- You have been present in the U.S. continuously for three years;
- Your USC or LPR spouse subjected you to battery or extreme cruelty;
- You are a person of good moral character;
- Your removal would cause “extreme hardship” to you or your USC or LPR children or parent; and,
- You are not inadmissible to the US because of criminal activity or fraud issues.
You can still apply even if you are divorced from your spouse for more than two years. An immigrant who successfully obtains cancellation of removal is granted a green card.
I was abused and am afraid to go back to my country because the government will not protect me from my abuser. Is there anything I can do?
You may be eligible for asylum if you can show that you are unable to return to your home country because of past persecution or a “well-founded fear of persecution” as a survivor of domestic violence. You must request asylum within one year of your entry to the U.S. unless you can show a change in circumstances which gives rise to your fear of future persecution.
What do I do for additional immigration help?
Call our Immigration Law Unit Helpline at 844-955-3425, Monday- Friday, 9 a.m. – 5 p.m. for assistance with cases other than deportation defense, such as:
- Green cards
- U & T Visas
- Temporary Protected Status
- Deferred Action for Childhood Arrivals
- Undocumented Youth in Foster Care
- Guardianship & Adoption Proceedings
- Other affirmative immigration benefits
- Public charge concerns
- Advance planning non-citizen parents
The information in this document has been prepared by The Legal Aid Society for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not act upon any information without retaining professional legal counsel.