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Legal Information: Federal

Immigration

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Updated: 
January 30, 2018

What 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.1  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.2  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.1

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 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.

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

What 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.1 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.2

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.3

1 INA §§ 216(a)(1), 216(g)
2USCIS website – Immigration Marriage Fraud Amendments of 1986
3USCIS website – Conditional Permanent Residence

Who 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.1 "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.2

1 INA § 216(c)(4)(C)
2 8 CFR § 216.5(e)(3)(i)

How 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.1

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

If 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.1 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.2 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.3

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