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August 15, 2022

What is a battered spouse or child waiver? How do I know if I am eligible?

A battered spouse waiver and a battered child waiver are legal protections under VAWA for immigrant victims of abuse who have conditional permanent residence. Normally, once you are married to your US citizen or lawful permanent resident spouse for two years, you can apply to get the “condition” removed from your lawful permanent residence when your spouse, who filed the initial application for your status, signs a “joint petition” with you. However, when there is domestic violence, the abusive spouse may refuse to file the joint petition or use it as a tool of power and control to further abuse you. This is why Congress created the battered spouse waiver under VAWA. If you are abused, you can file for a “waiver” of this “joint petition” requirement so that you don’t need your spouse’s participation in getting the condition removed from your conditional permanent residence status. If you can prove that you were abused by your spouse or parent, you can get this VAWA battered spouse waiver.

If your US citizen or lawful permanent resident spouse filed a family immigration petition for your children, they also may be able to get the “condition” removed without the abuser signing a “joint petition” based on the abuse committed against you or them by your spouse. If your children received their conditional permanent residence at the same time as you or within 90 days after you, you can include them as “derivatives” on your waiver application.1 Otherwise, your children would file a battered child waiver.

The other eligibility requirements that you’d have to prove to get a battered spouse or child waiver are:

  1. the marriage that is the basis for conditional permanent residence was a “good faith marriage;” and
  2. during the marriage, you or your child were battered or subjected to extreme cruelty by the US citizen or legal permanent resident abuser.1 “Extreme cruelty” is any form of power and control and includes, but is not limited to, 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

1I-751 Form Instructions
2 INA § 216(c)(4)(C)