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Know the Laws:

UPDATED April 20, 2013

VAWA Laws for Abuse Victims

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Immigration laws can be extremely complicated.  Here we provide some basic information about immigration benefits available to victims of domestic violence. WomensLaw.org strongly recommends that you consult with an immigration lawyer with experience in VAWA before applying for any type of immigration status to see if you qualify for these or other forms of immigration relief.  You may contact us through our Email Hotline if you would like referrals to organizations with experience in VAWA in your state. For national organizations with experience in general immigration law, please see our Immigration/ International page.  You can also find legal referrals on our Finding a Lawyer page.

Battered spouse or child waiver

back to topWhat is a battered spouse or child waiver? How does it work?

You may be able to apply for a “battered spouse or child waiver” if you have conditional legal permanent residence as a spouse (and in certain circumstances, as a child) of a USC or LPR, and the USC or LPR has abused you.*  Normally, when you have conditional permanent residence, you have to file a joint petition with your USC or LPR spouse to remove the "condition" during the 90 days immediately before the two-year anniversary of the date you got conditional resident status.**  However, if you meet the requirements for the battered spouse or child waiver as either the abused spouse or child (with conditional permanent residence) of a USC/LPR, you may ask that the condition be removed without the assistance of the abuser.*

To determine if you qualify for a VAWA self-petition or another form of immigration relief, you should consult an immigration lawyer with experience in VAWA.  Our Immigration/ International page lists national organizations working in the area of immigration law and our Finding a Lawyer page includes the contact information of legal organizations and lawyer referral services by state.

* INA § 216(c)(4)(C)
** INA § 216(c)(1)(A); INA § 216(d)(2)

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back to topWhat is conditional permanent residence status? How do I know if I have it?

To understand the battered spouse or child waiver, it is necessary to understand what conditional permanent residence is.  If you get legal permanent residence status (a green card) through marriage to a USC or LPR, and the marriage is less than two years old when you obtain your residence, then you will obtain “conditional permanent residence.”  Also, If your children received conditional residence through a petition filed by your spouse, then they will obtain conditional permanent residence as well.*  The reason why the US Citizenship and Immigration Services (USCIS) gives conditional permanent residence when a marriage is less than two years old and then requires a joint petition or waiver to remove the condition later on is to prevent marriage fraud.**

One way to determine if you have conditional legal permanent residence may be to look at the expiration date of your green card.  A conditional permanent resident will receive a green card that is valid for 2 years.***

* INA §§ 216(a)(1), 216(g)
** USCIS website – Immigration Marriage Fraud Amendments of 1986
*** USCIS website – Conditional Permanent Residence

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back to topWho is eligible for a battered spouse or child waiver?

You may be eligible for a battered spouse or child waiver if you meet all of the requirements below:

  • you have conditional legal permanent residence as the spouse of a US citizen (USC) or legal permanent resident (LPR) because your marriage was less than two years old when you obtained your residence; or you have conditional legal permanent residence as a child because your parent’s USC spouse filed a petition for you and the marriage was less than two years old when you obtained your residence;
  • the marriage that is the basis for conditional residence was a good faith marriage; and
  • during the marriage, the spouse or child was battered or subjected to extreme cruelty by the USC or LPR abuser.*  "Extreme cruelty" is any form of power and control and includes, but is not limited, to the following: being the victim of or threatened with an act of violence, forcible detention that results in physical or mental harm, psychological or sexual abuse, rape, molestation, incest, and forced prostitution.**
* INA § 216(c)(4)(C)
** 8 CFR § 216.5(e)(3)(i)

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back to topHow does the battered spouse or child waiver process work?

Once the battered spouse or child waiver is submitted, US Citizenship and Immigration Services (USCIS) may request additional evidence.  If the battered spouse or child waiver is approved, the condition in your conditional permanent residence will be removed.  Note: If you are a conditional permanent resident through a marriage to an abusive USC or LPR, and you do not file a joint petition or a waiver before the end of the second anniversary of the date when you got conditional permanent residence, you may lose your permanent residence status and could be removed (deported) from the US.*

* USCIS website – Instructions for Petition to Remove Conditions on Residence

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back to topIf the battered spouse or child waiver is approved, what will my immigration status be?

If the battered spouse or child waiver is approved, the condition in your conditional permanent residence will be removed.*  That means you will have legal permanent residence and you will be able to remain in the US lawfully as long as you follow relevant immigration laws.** Removing the condition in your conditional permanent residence is required so that you do not lose your permanent residence status and become removable (deportable) from the US.***

* INA § 216(c)(3)(B)
** USCIS website – Green Card (Permanent Residence)
*** INA § 216(c)(2)

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WomensLaw.org is grateful to Gail Pendleton, Esq., Co-Director of ASISTA, for her invaluable help in editing this information.

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