Battered Spouse and Widows May Self-Petition

As a general rule, an alien would have to be sponsored by a family member who is either a US citizen or legal permanent resident to immigrate to the US under relevant family-based immigration rules.

There are a few narrow exceptions to this general rule. Under certain circumstances an alien may self-petition for family-based immigration.

Widow/er and Battered Spouse

A widow/er is eligible to self-petition if s/he had been the spouse of a US citizen for at least two years S/he must not have been legally separated from the US citizen spouse at the time of the citizen’s death. Also, s/he must not have remarried at the time the petition was filed. The petition must be filed within two years from the death of the US citizen spouse.

An alien who is battered or abused by his/her US citizen or legal permanent resident spouse may self-petition under the Violence Against Women Act (VAWA). The law does not define the term “battered spouse” but the abuse suffered by the alien can range from actual physical abuse to extreme mental cruelty.

To be eligible to self-petition under the VAWA, the alien must meet certain requirements. First, the alien must have entered into the marriage in good faith.

Second, the alien or his/her child must have been battered or abused by the US citizen or legal permanent resident spouse

Third, the battered spouse and the US citizen or legal permanent resident are living or must have lived together in the past.

Fourth, the alien is currently residing in the USor if residing abroad, the abusive spouse is either a US government employee or subjected the alien to abuse in the US. Fifth, the alien is a person of good moral character.

Lastly, the abusive spouse is a US citizen or legal permanent resident both at the time the petition is filed and when it is approved, or the abusive spouse lost his US citizenship or legal permanent resident status because of domestic violence.

The unmarried children of the abused spouse who are under 21 may be included as derivative beneficiaries.

Effect of Divorce

If the alien sufficiently establishes that s/he had obtained a divorce as a result of the abuse by the US citizen or legal permanent resident spouse, s//he may still self-petition even if s/he is already divorced at the time the petition is filed.

However, if the alien spouse remarries before the petition is filed or approved, the petition will be denied. Remarriage after approval of the petition has no effect on the approval.

Battered Child

A battered child may self-petition if s/he meets certain conditions.

First, alien must be unmarried and less than 21 or qualify as a child under certain provisions when the petition is filed and approved; second, the abusive parent is a US citizen or legal permanent resident when the petition is filed and approved; third, the abusive parent is currently living in the US or if abroad, the abusive parent is a US government employee or subjected the child to abuse in the US; fourth, the child lived with the US citizen or legal permanent resident parent and was abused at that time; fourth, the alien is of good moral character.

How to Self-Petition

To self-petition, the alien must fill in Form I-360 and submit supporting documents with it to the US Citizenship and Immigration Service. The petition must be filed with the Vermont Service Center. Sending the petition to other USCIS offices could delay processing.