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Ashwin Sharma
Attorney & Counselor At Law

This article mainly refers to the battered immigrant as the woman and the batterer as the husband, but the I-360 self-petition described may be utilized by a victimized man or a woman.

Victims of domestic violence can be men or women; yet, the U.S. Department of Justice reports that approximately 97% of the victims of domestic violence are women.[i]  The National Violence Against Women Survey, which records incidents of violence against women in America, states that 1 out of 4 U.S. women has been physically assaulted or raped by an intimate partner.[ii]  However, whatever the rate in the general population, the percentage for immigrant women is probably higher.[iii]  Unfortunately, accurate statistics regarding assaults against immigrant women are difficult to come by because they will not come forth to report abuse.  A sense of shame, insecurity, and the possibility of separation from their children may prevent these women from speaking out.  An immigrant woman is also more vulnerable to abuse because her citizen or legal resident batterer can employ the threat of deportation to silence her.  As discussed below, this threat is now largely meaningless.

VAMA, THE BEGINNINGS

In 1994 the Federal government enacted a comprehensive “Violence Against Women Act” as Title IV of the Violent Crime Control and Law Enforcement Act of 1994.  This act had a useful application in preventing abuse of immigrant women.[iv]  VAWA allowed victimized immigrants to file their own applications for lawful permanent resident status.  The bill created a new visa category for the spouses and their children and authorized the Immigration and Naturalization Service to issue up to 10,000 of the visas per year.  Because the woman could self-petition, she no longer had any need to rely on a non-cooperative and abusive spouse.  The Act in effect took away much of the power that the batterers held over their wives. 

IMMIGRATION REFORM HURDLES

Unfortunately, two years after the passing of the VAWA act, obstacles for victims were created.  The chief among these newly implemented immigration reform bills was the requirement that battered women return to the country of their citizenship before their case could be heard.[v]  This requirement stripped from them the rights and privileges of American justice. 

The immigration reforms also did not allow the battered wife to remain in the country if she had arrived on an incorrect visa status, or had overstayed it.  This was a disturbing development because some abusive husbands, in an effort to retain control over their wives, knowingly did not submit an I-130 family petition for their wives. 

Women who had grown desperate after repeated abuse and had divorced their husbands had no protection and were out of status because their status was considered a derivative of their husbands’.  Their deportation was imminent, despite the fact that an abusive husband had forced them out of their marriages.[vi]  Finally, an “extreme hardship” requirement was imposed on those victims who attempted to utilize the protections of VAWA.[vii]  

VAMA REDUX

VAWA was re-authorized in 1999/2000, and continues to take steps towards addressing the needs of battered immigrant women.[viii]  “VAWA II” has been reworked to overcome the aforementioned immigration reforms. 

Battered immigrant women now do not have to leave the country to begin their petition for legal permanent residency.  Divorced women are also allowed to request VAWA protection within 2 years of divorcing an abusive husband, if the divorce was related to the abuse.[ix]  VAWA II does not discriminate against those women who have entered the country on an incorrect or wrong visa status: they are free to file a petition for legal residency.  VAWA II also allows more flexibility in granting employment authorization to women who need to establish financial means of support[x].  Finally, VAWA II removes the "extreme hardship" requirement to receive VAWA protections.[xi]

THE PROCEDURE

To self-petition, an immigrant must show that:

1. She was battered or subjected to extreme cruelty, and is or was married to a U.S. citizen or Lawful Permanent Resident within the past two years. Unmarried children of the self-petitioner who are under age 21 may be included in the petition, OR

2. She is the parent of a child who has been battered or subjected to extreme cruelty by that parent’s U.S. citizen or Lawful Permanent Resident spouse.  The mother of the battered child may self-petition and include all of her unmarried children under age 21 who live in the U.S. in her petition.

The woman then must file an I-360 with the U.S. Citizenship and Immigration Services (USCIS).  The government filing fee is $185.00.  The INS, which has a “broad discretion in granting fee waivers,” may waive this fee[xii] however; the abused woman may be requested to produce evidence of an inability to pay.  The USCIS need not have any authorization by or permission from of the woman’s husband. 

The I-360 form is available in person at a USCIS office, by calling 1-800-870-3676, or as a PDF file that may be found at  http://uscis.gov/graphics/formsfee/forms/i-360.htm.

There are 5 main requirements that must be fulfilled in order to self-petition.  Once these factors are fulfilled, a woman, along with her minor children, are awarded visa status and may expect to file for permanent residence in 3 years.  The victimized woman must demonstrate that she is:

1) a person of good moral character,

2) prove battering by a U.S. citizen or by a lawful permanent resident spouse that she lived with,

3) be married or divorced, within two years of application, from a U.S. citizen or lawful permanent resident,

4) must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits, and

5) 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.[xiii]  (There is some flexibility with this requirement.)

If the above applies to you or someone you know, I urge you to consider utilizing this petition.  For more information on the self-petitioning process, please consult www.bcis.gov or call the National Domestic Violence Hotline at 1-800-799-7233.  
You may also feel free to email me at ashwin@immigrationfirm.net