What Happens if the Family Member Who is Sponsor is Abusive?

Form I-360 Self Petition for Battered Spouses, Children, and Parents.

Special immigration statuses may be granted for immediate relatives of US citizens who are battered or abused, such as spouses, children, and parents, as well as for family members of lawful permanent residents, such as spouses or unmarried children, under the Violence Against Women Act (VAWA). This form of self petition allows an applicant to seek independence from his or her abuser without the abuser’s knowledge. The petition is known as the Form I-360 Self Petition. 

Eligibility for the I-360 is Based on Relationship to the Citizen or Permanent Resident

If a foreign born citizen has been physically, sexually, or psychologically abused by a direct relative who is a U.S. citizen or lawful permanent resident of the U.S., he or she may be eligible to file. The abuser must be the spouse, son or daughter, or parent of a US citizen or the spouse or parent of a permanent resident.  Note that the term “child” in the immigration context has a clear definition under the Immigration and Nationality Act, (“INA”) and refers only to an unmarried child under the age of 21, whereas “son or daughter” refers to an adult child of the abused person who is over age 21.  

There are specific eligibility requirements for each type of relationship, but each applicant must prove:

• Actual abuse: physical abuse is not always required so long as the cruelty that the abuser exhibited was extreme. This requirement may be met if the foreign-born person’s child, step-child, or adopted child was physically or mentally abused.
• Household: The foreign born person lived in the same dwelling as the abuser. 
• Moral character: The foreign born person has good moral character. 

In addition to the above requirements, the applicant must prove the following according to the relationship of the foreign born individual to the abuser.

Eligibility for Spouses

If the abuser is a spouse, the foreign national must demonstrate:

• They are still married to the citizen or permanent resident, or
• The marriage was terminated by divorce or death within 2 years before the foreign born national filed the I-360 petition, or 
• Due to an act of domestic violence, the USC or LPR abuser spouse lost or renounced his or her citizenship or permanent resident status within the 2 years before the foreign born person filed the petition, or
• The foreign born person believed he or she had been legitimately married, but the marriage was illegitimate due to the bigamy by the abusive spouse, and
• The foreign born person entered the marriage in good faith, not merely to avoid immigration laws. 

Eligibility for Children

If the abuser is a parent, the foreign born child or legal guardian of the child, must demonstrate:

• The child is under the age of 21 and unmarried. In some circumstances children over the age of 21 but younger than 25 may be able to file if proof can be provided to establish that the delay was due to the abuse, and

• The abusive parent is a U.S. citizen or permanent resident of the U.S., or
• Because of an act of domestic violence, the abusive parent lost his or her citizenship or permanent resident status.

Note: The foreign born child must also demonstrate that he or she meets the actual abuse, household (mutual residence), and moral character requirements discussed above. However, a child under the age of 14 is presumed to be of good moral character. 

Eligibility for Parents 

If the abuser was an adult son or daughter of a U.S. citizen, the foreign born parent must demonstrate:

• The adult son or daughter is a U.S. citizen and at least 21 years old when the I-360 Petition is filed, or
• Because of an act of domestic violence, the adult son or daughter lost or renounced his or her citizenship, or
• The adult U.S. citizen son or daughter died within 2 years before filing the I-360. 

The parent must also demonstrate the actual abuse, household (mutual residence), and moral character requirements discussed above. 

After the I-360 is Filed

After filing the I-360 petition, the applicant will first receive a receipt notice and then a Prima Facie Determination Notice, which lasts 150 days to allow government agencies to provide you with benefits for victims of domestic violence. If the I-360 is granted, USCIS will place the applicant on deferred action status and he or she will be eligible to apply for employment authorization. If the abuser is/was a U.S. citizen, the applicant is eligible to immediately apply for a green card at the same time as filing the I-360 Petition, if otherwise adjustment eligible.  However, if the abuser is/was a permanent resident, the applicant will have the same wait to apply for permanent resident as other relatives of a permanent residents do, according to annual numerical limitations and current immigrant visas listed on the Department of State’s published Visa Bulletin.